Wade Clark Mulcahy LLP

Imagine filing for summary judgment and finding out you proved you are not liable for negligence, but failed to prove you are not liable for… Negligence. In the case Raul Garcia Delaluz

v. Christine A. Walsh, et al., this surprisingly wound up being the case for the defendant, Built Home Improvements, LLC (BHI).

BHI was renovating the second-floor bathroom of the Co-Defendant, homeowner, Christine Walsh. Walsh sought to amend the scope of the work to include installation of granite in certain areas of the bathroom, including around her new bathtub.  Because BHI did not perform such work, Walsh retained Monumental Marble.  On the day of the accident, BHI was not on-site because Monumental had to install the granite before BHI could install the bathtub.  Plaintiff, an employee of Monumental, was performing his work without the bathtub in place and the subfloor exposed.  BHI had covered the subfloor with plywood where the bathtub would eventually be installed. There was a separate opening in the drain area, which was covered with its own wooden slab, which was located some distance below the plywood the covered most of the bathtub area.  Plaintiff injured his leg when he stepped onto the wooden covering of the drain area and fell through the opening it covered. When plaintiff sued BHI and Walsh, BHI filed for summary judgment to dismiss plaintiff’s claims for common law negligence and Labor Law § 200 and 241(6). The motion was granted in its entirety.

While the Appellate Division upheld the dismissal of the Labor Law claims, they reversed the common law negligence claim. This is particularly surprising because Labor Law § 200 is a codification of common law negligence. The Court held that Labor Law § 200 only applies to owners and contractors who are able to supervise the work. Here, BHI and Monumental were separate prime contractors not in privity with each other.  Each entity was responsible for its own scope of work.  BHI had no on-site presence and lacked the authority to direct, supervise, or control the plaintiff’s work.

However, the Court held that BHI could still be liable under common law negligence  under the theory that standing in the drain area was a danger that BHI failed to warn plaintiff of, and it was a question of fact if the drain area was such a readily observable risk that plaintiff would have been able to discover this danger on his own with reasonable use of the senses, thereby precluding summary judgment on the common law claim.

This is an interesting result because it is based on a very nuanced difference. Technically, Labor Law § 200 and common law negligence are basically the same thing, but again, the former only applies when a party has supervisory power over another. Common law negligence does not require this.  So, when trying to demonstrate you are not liable for negligence, make sure you also adequately demonstrate that you are not liable for negligence, either.