Subcontractor Liability Under New York's Labor Laws: Statutory Agency And Duty To Supervise
July, 2011
As is typical in many commercial construction projects, an owner will hire a general contractor, who in turn, will retain various trade subcontractors. Sometimes the subcontractors will assign their work to other companies, forming a subcontracting hierarchy. Generally, a subcontractor in this chain is only exposed to liability if it exercised supervision or control over the injured plaintiff. However, in a recent decision, the New York State Appellate Division for the First Judicial Department expanded the scope of what qualifies as supervision under New York's Labor Law statutes, and thereby made it much more difficult for an absentee subcontractor to avoid liability for work it did not direct or arising from injured plaintiffs it did not actually supervise. See Nascimento v. Bridgehampton Construction Corp., 2011 NY Slip Op 4607 (1st Dep't 2011).
In Nascimento, Plaintiff claimed he was injured when he fell from a ladder, and asserted causes of action sounding in Labor Law §§240(1) and 241(6). See id. The general contractor for this job, Bridgehampton Construction Co., subcontracted the framing work to Bayview Building and Framing Corp., which in turn subcontracted that work to R & L Carpentry Corp., which further subcontracted the work to Figueiredo Construction, Plaintiff's employer. Id. at *2. Bayview moved for summary judgment seeking to dismiss Plaintiff's Labor Law claims, arguing that since it subcontracted the job to another company and did not supervise or control Plaintiff, it cannot be held liable for the alleged failure to provide Plaintiff with certain safety devices. Id. at *3.
Labor Law §§240(1) and 241(6) impose a non-delegable duty on owners and general contractors to provide reasonable and adequate protection, and safety to workers. These sections of the Labor Law require that a defendant have the authority to exercise supervision or control over an injured plaintiff before they are applicable, as such authority renders the subcontractor a statutory agent of the general contractor. Id. at *3; see Russin v. Louis N. Picciano & Son, 54 NY2d 311 (1981). Statutory agency requires that a subcontractor be delegated with the responsibility to supervise or control either the specific work area involved or the work which gave rise to the injury. Id. at *3; Headen v. Progressive Painting Corp., 160 AD2d 319, 320 (1990). The reasoning here is that it is inequitable to hold a party liable if it did not have the authority to supervise or control, as it could not act to prevent the complained of injury.
In this case, it was undisputed that Bayview asserted no actual supervision over Plaintiff. Id. at *4. However, even in situations where a subcontractor does not actually supervise, it is possible for liability to be imposed if that subcontractor had the authority to supervise, regardless if such authority was in fact exercised. Id. at *3. Typically, this authority is found in the terms and provisions of the subcontract agreement. Here, Bayview did not enter into a written contract with Bridgehampton. Id. at *4. Based on the absence of a written agreement, Bayview argued that it lacked the authority to supervise, relying on the fact that it was not contractually authorized or required to do so by Bridgehampton.
Bayview did, however, enter into a written agreement with R & L Carpentry, its subcontractor. Id. at *4. Therein, Bayview required R & L Carpentry to "provide all labor, tools, equipment, supervision and other items necessary to execute the" work. Id. at *4 (emphasis added). The Court relied on the foregoing provision to infer that Bayview indeed had the authority and, therefore, duty to supervise Plaintiff. The Court reasoned that Bayview could not assign a duty it did not itself possess, and delegation of authority to supervise to another subcontractor forms partial proof that the delegating party possessed such authority. Id. at *4; Weber v. Baccarat, Inc., 70 A.D.3d 487, 488 (2010). Thus, the language of the subcontract between Bayview and R & L Carpentry evidenced Bayview's authority to supervise, regardless of the fact that Bayview was not authorized by the general contractor to supervise, nor did it actually supervise, Plaintiff. The Court found that under these circumstances, a jury could find that Bayview, the absentee subcontractor, was a statutory agent of the general contractor, and denied summary judgment. Id. at *5.
Learning Point
The Nascimento decision highlights an important issue in evaluating Labor Law liability. Contractors must be aware that the terms of their agreements with subcontractors may be interpreted by the courts as creating otherwise non-existent duties which trigger the application of the Labor Law. An absentee subcontractor with no presence on site and no contractual duty to supervise cannot, as a matter of law, escape liability when it allegedly empowered another subcontractor to supervise the work of the injured plaintiff. In evaluating potential liability under the Labor Law, counsel should not limit his/her investigation to contracts with parties higher in the subcontract chain (where typically, authority and duties are assigned to contractors lower in the chain). Counsel would be well advised to examine contracts with subcontractors lower in the hierarchy as well, to determine if authority to supervise can be gleaned from mere assignment of an otherwise non-existent duty. Statutory agency can be imposed even in situations where the subcontractor did not actually supervise the injured plaintiff, and was not contractually authorized to do so by the general contractor.
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