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By Stephen A. Davoli, Esq.

 

Often times adjusters and defense attorneys defending personal injury claims based on Labor Law violations focus laser like attention on the merits of the plaintiff’s claim under Labor Law 240(1), and rightfully so. Those claims are dangerous for several reasons that are well known to the defense bar and seasoned insurance adjusters; plaintiffs routinely win summary judgment early in cases which triggers statutory interest, and most damaging, there is no comparative fault to offset plaintiff’s damages.

Personal injury actions arising from construction site accidents include claims under not just Section 240(1), and 241(6) but also Labor Law 200 (general negligence). There is a substantial amount of text devoted to the “ins and outs” of achieving dismissal of Section 240(1) claims, and to a lesser extent, 241(6) claims, but very little attention is devoted to the plaintiff’s negligence claims.

Sometimes the defense’s enthusiasm for winning dismissal of Labor Law 240(1) and 241(6) claims is so focused that a proper analysis of negligence is overlooked. This is a mistake because failing to properly address the negligence claim means the claim survives even when summary judgment was achievable. The most common mistake that results in this unfortunate outcome arises from the failure to address the most fundamental question at the earliest stage of defense. Did the plaintiff’s injuries arise from the manner in which the work was performed, or did it arise from a defective condition present at the worksite?

Courts have recognized these two distinct types of workplace accidents and treat them with separate analysis. If the plaintiff’s accident occurred as a result of the manner in which actual work was performed, the Court will dismiss the negligence claims if the defendant did not have authority to direct and control the injury producing work. For example, if the plaintiff is injured by a piece of machinery or equipment while in use, the Court will dismiss the negligence claims so long as the defendant, typically the owner and general contractor, did not have authority to direct and control the means and methods associated with the use of that equipment. This analysis is so familiar to defendants it is often employed in support of dismissal of the negligence action without any thought as to whether it is actually applicable.

On the other hand, if the plaintiff is injured when he slips on discarded material left by another subcontractor, the Court will not focus on which entity directed and controlled the work plaintiff was performing at the time, but will instead focus on which entities had control over the worksite. This is a classic example when defendants lose focus and fail to obtain a complete summary judgment win because the wrong analysis is conducted. In the above example, a general contractor or owner may succeed in convincing the Court to dismiss the plaintiff’s 240(1) claim, but fail to have the negligence claims dismissed because they failed to recognize that under this scenario the negligence claim must be treated exactly like any other premises liability claim.

The natural reaction of the owner and general contractor is to assume that they are free from potential liability because a subcontractor has been identified as the culprit who negligently discarded the offending material. However, owners always have a common law duty to keep their property free from defects and that duty is almost always imputed to the general contractor because the owner transfers authority over the worksite to the general contractor during construction. In the above example, the owner and general contractor can win dismissal of plaintiff’s negligence claim but only if they show the Court they did not have actual or constructive notice of the defective worksite condition, and did not have sufficient time to correct the defect as a matter of law. This is no different than the analysis that is conducted in any standard trip or slip and fall case, yet the failure to employ this analysis in construction cases when appropriate, rather than the default “direction and control” argument is prevalent.

Even if the facts of claim dictate that it cannot be dismissed on motion, recognizing the distinction between these types of accidents at the outset of a claim means it can be properly reserved, unnecessary appellate work can be avoided, and realistic expectations can be set for the resolution of the claim. Claims professionals that recognize these distinctions and associate with counsel well versed in these issues are in the best position to successfully manage risk.

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