The Most Formidable Defense to a New York Construction Site Accident Case

In our post a few months ago entitled "The Most Important Exception to Owner/Contractor Liability for Worksite Accidents in NY," we discussed how one and two-family dwellings are, generally speaking, exempt from Labor Law §§200, 240(1) and 241(6) [a/k/a, the "homeowner's exemption"].

There is an important - and more commonly litigated corollary to that rule, however: when the defendants did not own or exert any supervision or control over the worksite, or the mechanism by which the plaintiff was injured. I consider this a "common sense" rule; if the defendant has nothing substantive to do with the reason for the plaintiff's injury, then that defendant should not be held responsible for it.

And that is exactly the issue addressed in Bowles v. Clean Harbors Environmental Services, Inc., in a decision that was handed down on April 15 by New York's Appellate Division, Third Department.

In Bowles, the plaintiff was a safety technician who climbed a ladder in order to conduct air testing on a chemical tank to assure that it was safe to be cleaned. When the plaintiff reached the top of the ladder and reached over to put the meter in place to test the tank's air quality, the ladder he was using apparently malfunctioned, causing him to fall roughly 10 feet, and to suffer significant personal injuries. The defendant, was another contractor that was hired to actually clean the tank.

In affirming the dismissal of plaintiff's case, the Court stated as follows:

"Here, defendant was hired for the limited purpose of cleaning the tanks. Although defendant had supervisory control over its employees and the manner and method it used to clean the tanks, it could not enter or commence cleaning the tanks until [plaintiff's employer] issued a confined space permit  ...The deposition testimony established that defendant had no authority to control the manner in which [plaintiff] performed his confined space inspection nor could defendant enforce safety standards in connection therewith ... defendant cannot be considered a contractor or an owner's agent to impose liability pursuant to Labor Law §§240 and 241."

This certainly seems like the right and just result to me.