In our last column (April 16, 2013), we looked at two legislative proposals to "reform" Labor Law §240(1) and whether it was indeed true, as claimed by the bills' proponents, that New York was "tougher" than any other state in imposing vicarious liability for construction site accidents.
We found that New York imposes "absolute" liability only as to one narrow class of accidents, where the accident was "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential."1 We noted that New York also imposes vicarious but not "absolute" liability where the contractor violated a "concrete" (not "general") provision of Industrial Code Rule 23,2 but that liability for dangerous site practices is otherwise not imposed in the absence of control. We cited the Court of Appeals ruling in Pavlou v. City of New York to illustrate the last point.3 That was the case in which the boom of the crane collapsed and struck the plaintiff and the defendants successfully defended the case by proving that the accident occurred because the crane was cracked, a condition that was not violative of any Rule 23 provision.
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