A Construction Claim Trifecta - Issues of Labor Law 240(1), Grave Injury and Contractual Indemnity

In Miranda v. Norstar Building Corp., the Third Department was confronted with a case involving a trifecta of typical issues involved in construction site accident litigation -- Labor Law 240(1), "grave injury" and contractual indemnification.

The plaintiff in Miranda was catastrophically injured in a 30-foot fall from a rooftop. The plaintiff was not provided with traditional safety devices, in that there were no harnesses, lanyards, tie-offs, etc. Plaintiff was provided, however, with a "safety monitor" -- a co-worker whose job it was to watch the employees as they performed their work and warn them when they were too close to the edge of the roof. In holding that a "safety monitor" is not a "safety device" within the meaning of Labor Law 240(1), the Third Department found that the statutory enumerated devices, such as a scaffold, provide "physical support" to protect workers from elevation related risks. By contrast, the "safety monitor" provided no such physical support. Therefore, the Court deemed it consistent with the legislative intent of 240(1) to hold that plaintiff was not provided with a safety device within the meaning of the Labor Law.

Notably, the Court rejected the defendants' argument that, because a "safety monitor" was acceptable under OSHA guidelines and the only appropriate fall protection under the circumstances, they had not violated Labor Law 240(1). In essence, the Court held that the OSHA guidelines in this respect were inconsistent with the Labor Law. Interestingly, however, the Court could have opted to find that a "safety monitor" was a sufficient "device" within the meaning of the Labor Law, but still found that the defendants had violated the Labor Law because the monitor in the present case failed to meet the OSHA requirements. OSHA required that the monitor "shall not have other responsibilities which could take the monitor's attention from the monitoring function." Here, the monitor testified that he thought that he could perform additional tasks while performing the monitoring function and he was cleaning a seam on the roof when the accident occurred. The fact that the Court took the "extra step," so to speak, gives the impression that this issue was ripe for decision. Which, of course, leads me to wonder whether the Court of Appeals will be getting this issue sometime soon?

The "grave inujry" aspect of this case pertained to whether plaintiff was "employable" despite his traumatic brain injury. Given conflicting expert affidavits on this issue, the Court found that a question of fact existed to deny summary judgment. The Court also found that the guardianship Order in place, plaintiff's eligibility for Social Security and the fact that he was deemed permanently and totally disabled by the Workers' Compensation Board was not determinative of this issue, holding that such determinations are not dispositive (see Way v. Grantling, 289 AD2d 790 [3rd Dept. 2001]).

On the contractual indemnity issue, the Court found that the parties' agreement was not violative of the General Obligations Law in that the proposed indemnitee, NBC, was not seeking to be indemnified for its own negligence. Citing to Brooks v. Judlau (11 NY3d 204 [2008]), the Court specifically noted that the provision at issue was a "partial indemnification agreement." The Court went on to find, however, that a question of fact existed as to whether NBC was negligent with respect to the happening of plaintiff's accident. As such, it was premature to hold that NBC was entitled to conditional contractual indemnification. I wonder if NBC had argued that it should be entitled to conditional, partial contractual indemnification?