Owner’s Obligation for Construction Safety

As the party with the ultimate responsibility for a construction project, an owner has statutory and common-law obligations to protect workers from accidents that are capable of being anticipated. However, an owner does not have an obligation to protect workers from atypical or freak accidents. Herman v. Lancaster Homes, Inc., 145 A.D.2d 926, 536 N.Y.S.2d 298 (4th Dep’t 1988). Also, an owner’s duty extends only to the workplace and does not necessarily include access to the workplace. Wolf v. New York State Elec. and Gas Corp., 142 Misc. 2d 774, 538 N.Y.S.2d 188 (Sup. 1989)(where an issue of fact arose as to whether the road is part of the workplace). Furthermore, an owner must have an interest in the building or site where work is being performed for purposes of construction safety and an owner of an adjacent building is not an owner for statutory liability purposes. Berrios v. TEG Management Corp., 7 A.D.2d 555, 777 N.Y.S.2d 163 (2d Dep’t 2004).

At common law, an owner has a duty to furnish a safe place to work as far as its facilities are concerned (Freeo v. Victor A. Perosi, Inc., 54 A.D.2d 684, 387 N.Y.S.2d 268 (2d Dep’t 1976)), but the owner does not have to make sure that its contractor’s plant or equipment is safe or that the work performed by the contractor is done in a safe manner. Ortiz v. Uhl, 39 A.D.2d 143, 332 N.Y.S.2d 583 (4th Dep’t 1972). An owner’s common law duty to provide a safe work place is not breached if an injury is due to a defect in the contractor’s plant, tools, and methods or due to a negligent act of the contractor relating to a detail of the work. Persichilli v.Triborough Bridge and Tunnel Authority, 16 N.Y.2d 136, 262 N.Y.S.2d 476 (1965). The general rule is that one who engages an independent contractor to do work is not liable for the latter’s negligence in performance. Kojic v. City of New York, 76 A.D.2d 828, 428 N.Y.S.2d 305 (2d Dep’t 1980). For example, an owner may be liable it its inspector notices a dangerous condition but does not make sure that it is made safe. Id.

The statutory duties imposed on an owner are much greater than at common-law. N.Y. Labor Law § 200 enforces an owner’s common-law obligations to provide a safe workplace, and additionally makes those obligations non-delegable and expands the owner’s obligations to include tools and equipment furnished by the owner that are necessary to make the workplace complete. Olson v. Chase Manhattan Bank, 10 A.D.2d 539, 205 N.Y.S.2d 60 (2d Dep’t 1960). An owner’s obligations under § 200 are governed by negligence principles (Shaheen v. International business Machines Corp., 157 A.D.2d 429, 557 N.Y.S.2d 972 (3d Dep’t 1990)), and alleged violations are subject to the owner’s defense of the injured worker’s comparative negligence. Siragusa v. State, 117 A.D.2d 986, N.Y.S.2d 533 (4th Dep’t 1986).

An owner’s obligation to provide a safe working environment for workers is further expanded under N.Y Labor Law §§ 240 and 214. Under § 240, an owner has a non-delegable duty to provide and erect safe scaffolding and to provide other safety equipment to protect those working at heights. Yaeger v. New York Telephone Co., 148 A.D.2d 308, 538 N.Y.S.2d 526 (1st Dep’t 1989). Under § 241, an owner has an obligation to comply with requirements designed to protect workers from falls through open floors, shafts, elevators, etc. and from being struck by falling material, and to also provide reasonable protection from the usual dangers of construction. Id.

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