BREAKING GROUND

Trends In New York Construction Law

07
JUL
2015

Look Out Below! Court of Appeals’ Take On Falling Into An Open Manhole

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In a decision only Wile E. Coyote and the Plaintiffs’ Bar can appreciate, New York’s highest court has determined that falling through an open manhole – that you had just exited – nets you summary judgment under Labor Law § 240(1). In Barreto v. Metropolitan Transit Authority, the New York Court of Appeals overturned the First Department’s dismissal of the 240(1) claim and granted summary judgment on liability to plaintiff, holding as follows:

The Appellate Division erred in holding that plaintiff’s conduct was the sole proximate cause of his injuries in light of the undisputed fact that it took at least two PAL workers to move the manhole cover (given its weight), and plaintiff’s testimony that the lights had been turned off prior to disassembly of the containment enclosure.  Therefore, plaintiff’s conduct could not have been the sole proximate cause of his injuries, and plaintiff is entitled to partial summary judgment against the City, NYCTA and MTA on his section 240(1) claims.

The first thing that stands out is that the Court of Appeals limited its analysis strictly to whether the sole proximate cause defense applied or not. It did not affirmatively hold that the work involved an elevation-related hazard as contemplated under 240(1). To that end, the Court of Appeals stated as follows:

The City, NYCTA and MTA do not contend on this appeal that the work plaintiff was engaged in at the time of the accident did not involve an elevation-related hazard, nor did IMS initially move for summary judgment on that ground. Therefore, we assume, for purposes of this appeal only, that plaintiff was engaged in work that posed an elevation-related risk.

It therefore appears safe to “assume” that this decision does not impact on the prior Appellate Division decisions which have held that falling through an open manhole does not fall within the purview of Labor Law § 240(1). See, e.g. Carey v. Five Brothers, Inc., 106 A.D.3d 938 (2d Dep’t 2013); Masullo v. City of New York, 253 A.D.2d 541 (2d Dep’t 1998) (“While the manhole may have been negligently left uncovered, this is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor Law § 240(1). To the contrary, the fall was the “type of ‘ordinary and usual’ peril a worker is commonly exposed to at a construction site”) (citations omitted)).  Nevertheless, the obvious lesson here in defending against Labor Law § 240(1) claims is to not limit your argument to the knee-jerk “sole proximate cause” defense while losing focus on the bigger picture of whether the statute even applies to the subject work.

As far as the sole proximate cause analysis, it is puzzling, maddening, interesting that that the Court of Appeals not only reversed the dismissal of plaintiff’s Labor Law § 240(1) claim, but went so far as to grant summary judgment to plaintiff given the following notable tidbits (a/k/a issues of fact):

  • Plaintiff and his co-workers had just exited the manhole prior to the accident and plaintiff conceded that he did not see anyone place the manhole cover back during the brief period between exiting the manhole and falling through it;
  • While plaintiff alone testified that the lights were turned off prior to dissembling the containment enclosure surrounding the manhole, others insisted that the lights were on;
  • By plaintiff’s account, he would have been dismantling the containment enclosure totally in the dark;
  • Plaintiff conceded that he was instructed on this job (and even that very same day) to wait until the manhole cover was placed before beginning dismantling work;
  • Plaintiff’s standard practice on other jobs was to wait until the manhole cover was placed before dismantling the containment enclosure;
  • The manhole cover, i.e. the safety device which would have provided perfect protection in this instance, was nearby and available;
  • Joseph Mazzurco, the president of IMS Safety Inc. (the site safety consultant on this project), whose non-expert testimony the Court of Appeals heavily relied upon in determining that Labor Law § 240(1) had been violated, plead guilty to defrauding the DEP and the Army Corps of Engineers. Mazzurco was sentenced to three years in prison and fined over $1 million in December 2009.

 

One final point on this decision relates to the Court’s holding that there were issues of fact as to whether the site safety consultant on this project, IMS Safety, Inc., was a statutory agent subject to liability under the Labor Law. Evidently, in voicing an opinion during his deposition that a guard rail system should have erected surrounding the open manhole and that IMS had the responsibility of ensuring appropriate safety procedures on this job, Mazzurco bit off more than he could chew and potentially implicated his own company for this loss. The Court determined, based on this testimony and an affidavit from plaintiff’s supervisor, that issues of fact were raised as to whether IMS “had the ability to control the activity which brought about the injury”.  Notably, IMS’ safety consultant agreement for this project – the terms of which typically dictate as far as measuring a safety consultant’s control over a jobsite (see, e.g. Cappabianca v. Skanska USA Bldg., Inc., 99 A.D.3d 139 (1st Dep’t 2012)) — was not mentioned in the decision.

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Paul Howansky

Paul Howansky is a partner at Harrington, Ocko & Monk, LLP where he specializes in handling insurance coverage disputes, construction litigation and subrogation claims. He also manages the firm's appellate practice. Mr. Howansky earned his J.D. from Hofstra University School of Law, where he served as Articles Editor for the Hofstra Law Review. If you have any questions regarding construction law issues, please contact Paul at (914) 686-4800 or via e-mail phowansky@homlegal.com.