Crane accidents can cause serious injury and/or death not only for the operator[s] of the crane, but for unsuspecting individuals in neighboring buildings that get struck or those on the ground who have debris raining down upon them. This is especially so in a large metropolis such as New York City. For example, on the east side of Manhattan the collapse of a crane at a construction site killed the crane operator, injured a fellow worker and the owner of the crane company was indicted for manslaughter. More recently, while work was being done to extend the #7 train on the west side of Manhattan, a 120 foot crane snapped into two sections: one 80 feet in length and the other 40 feet in length. This resulted in the death of one construction worker, leaving another with serious injuries and three others with minor injuries.
Construction workers seeking recovery for their injuries directly caused by such accidents, generally do so under several provisions of the Labor Law. While actions are often brought under the theories of common law negligence, Labor Law section 200, which codifies an owner’s and contractor’s common law duties to provide and maintain a safe workplace, section 240(1), if the accident is elevation related and proper protections for the worker were not provided, and section 241(6).
Section 241(6) of the Labor Law is the primary statute that comes into play in these situations and reads in relevant part as follows:
“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work….shall comply therewith.”
The Occupational Safety and Health Administration (OSHA) has set forth strict rules and regulations to be followed and, more specifically, the New York Codes Rules and Regulations, Article 12, Part 23 (Protection in Construction, Demolition and Excavation Operations) further delineates the requirements of the Industrial Code that must be adhered to. Subpart 23-8 is devoted to Mobile Cranes, Tower Cranes and Derricks.
These rules and regulations cover, among other things, the following: (a) the stability and strength of the cranes; (b) inspections [(1)intervals not exceeding one month]; (c) footings [a firm footing shall be provided…]; (d) hoisting mechanism brakes and locking devices; (e) loading handling [(1)shall not be loaded beyond their rated capacities; (6) no more than one load shall be suspended for the same load line at one time]; (f) hoisting the load [(1)(iv) the load is well secured and properly balanced in the sling of lifting device before it is lifted a few inches; (2)(i) there shall be no sudden acceleration or deceleration of the moving load unless required by emergency conditions; (ii) the load shall not contact any obstruction; (5) shall not hoist, lower, swing or travel while any person is located on the load or hook; (6) shall not hoist or carry any load over and above any person unless otherwise provided in this Part; (7) the operator of any mobile crane, tower crane or derrick shall not leave his position at the controls while any load is suspended nor shall any person be permitted to work or pass under a stationary suspended load].
It should be pointed out that actions brought under Labor Law section 241(6) and the Industrial Code allow the defendants to raise defenses against the allegations such as contributory or comparative negligence, as opposed to Labor Law section 240(1) which imposes “strict” or “absolute” liability upon an owner and/or contractor at a construction site.
Interpretation of Labor Law section 241(6) by the Court of Appeals in Ross v. Curtiss-Palmer Hydro-Electric Corp., (81 NY2d 494), resulted in a distinction between the provisions of the Industrial Code that mandates compliance with “concrete specifications” and those that that merely provide general safety standards “by invoking the ‘[g]eneral descriptive terms’ set forth and defined in 12 NYCRR 23-1.4(a). The former give rise to a non-delegable duty, while the latter do not”. Referring to this statute as a “hybrid”, the Court of Appeals went further in Toefer v. LIRR, (4 NY3d 399), stating that the “specific detailed rules” places a non-delegable duty on owners and contractors to comply with them thus making them vicariously liable for the negligence of others whom they did not supervise, “where, and only where, a ‘specific, positive command [ ] … or a ‘concrete specification’… of a regulation promulgated by the Commissioner pursuant to the statute has been violated”.
As far back as 1935, the Court of Appeals was confronted with the question of whether the operator of a crane on a flatbed railroad car, that caused injury to a construction worker at Attica Prison while unloading cargo, was the employee of the respondent owner of the crane or the construction company that employed the injured worker. The respondent alleged that the tariff provisions of the Interstate Commerce Commission required the construction company to oversee the removal of the cargo. Therefore, at the time of the injury, the owner of the crane could not be held liable because, during the operation of the crane, the operator was acting under the supervision of the construction company as its “employee”. The Court had to determine who was the “master” of the operator. “The liability of an employer for damages caused by the negligence of a servant rests upon the doctrine of respondeat superior, which makes a master liable for injuries resulting from the negligent acts of a servant done within the scope of his employment in the master’s service”. In finding against the railroad company, the Court stated “what difference does it make whether we say [the railroad company] was unloading the car itself or that it loaned the crane and its operator to the construction company to do the work? In either case, it retained the absolute control of its machinery and its operator”. (Ramsey v. NY Cent RR Co, 269 NY 219)
Of more recent vintage, is the case of Locicero v. Princeton Restoration, Inc., (25 AD3d 664, AD 2nd Dept., 2006), where the plaintiff was injured when a bundle he was lifting by a crane on the back of his truck fell on him. The bundle was attached to the crane by two slings threaded through gauge wire ties pre-attached to the bundle by the manufacturer which “snapped” causing the bundle to fall. While finding that Labor Law section 200 did not apply in this case as there was no supervision at the worksite by Princeton, the general contractor, the court held that “ [a] contractor may be liable to an injured worker under Labor Law §241(6) even absent evidence of control or supervision of the injury-producing event, where a failure to comply with specific safety rules and regulations set forth in the Industrial Code of the State of New York was a substantial factor in bringing about the injury-causing event”. Here, the cause of action under Labor Law section 241(6) was sustainable because it alleged, inter alia, a violation of section 23-8.1(f)(6) of the Industrial Code, supra, which specifically prohibits the “hoist[ing] or carry[ing] any load over and above any person”. As the court held: “Although subpart 23-8.1 is entitled ‘General provisions,’ section 23-8.1(f) (6) is an unequivocal specific command and not a mere reiteration of a common-law standard of care incorporated into the Industrial Code”.
As previously set forth, there are specific regulations regarding the “hoisting” of materials upward by cranes. However, does that preclude recovery if a worker is injured by a beam that is propelled forward and strikes him while it is being hoisted off the ground? In McCoy v. Metropolitan Transportation Authority, 38 AD3d 308 (AD 1st Dept., 2007), the Appellate Division, First Department, allowed plaintiff to amend hisbill of particulars to include various provisions of the Industrial Code with respect to hoisting. The court held that those provisions were not inapplicable as a matter of law because the beam was propelled forward after it had been lifted a foot off the ground. “When a crane is being used to move a large, heavy or unwieldy item from one spot to another, the term ‘hoisting’ should not be read so narrowly as to apply only to the part of the process in which the item is being moved in an upward direction and to preclude the part of the operation when the load, having been lifted upward, is being propelled horizontally. There is little logic to the idea that the Code would require a tag or restraint line to protect workers and others from the rotation or swinging of a load, but only when the load is being raised, and not when an already raised load is being moved horizontally”.
In a subsequent decision involving the same parties, the court noted the term “mobile crane” is undefined in the Industrial Code and that “whether a regulation applies will depend on how and for what purpose the equipment is used, not on its label or name”. (McCoy v. Metropolitan Transportation Authority, 75 AD3d 428 [AD 1st Dept., 2010])
In Catarino v. State of New York, 55 AD3d 467 (AD 1st Dept., 2008), claimant injured his hand while standing on a concrete box that had been unloaded off a flatbed truck by a crane. As he was disconnecting the hook from the cables that were attached to the box, the crane began to move and his hand was pulled into the cable box and crushed. The respondent State had argued that claimant’s reliance on section 23-8.1(f) (5) of the Industrial Code, supra, which prohibits the hoisting, lowering, swinging or travelling of cranes while a person is on the load or hook, was inapplicable because the load was not moving at the time of the injury. The Appellate Division, First Department, disagreed. Stating that the regulation prohibits using the crane while a person is physically on the load, the court held that “[a]s claimant was injured when the crane was operated while he was on the load section 23-8.1(f) (5) is clearly implicated”. However, the court noted that the respondent can “raise any valid defense to the imposition of vicarious liability under Labor Law §241(6), including contributory negligence and comparative negligence”.
In conclusion, any interpretation and application of the Industrial Code should be sensible to “effectuate the purpose of protecting construction laborers against hazards in the workplace … and to take into consideration the function of the piece of equipment, and not merely the name when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code”. (St. Louis v. Town of North Elba, 16 NY3d 411, 2011)