Co-op Apartment Liability for Construction Accidents

            The New York State Labor Law provides protection for many types of accidents involving construction, renovation and demolition work activities.  Generally speaking, the owner of the premises and the general contractor are legally responsible for maintaining a safe work site and are held responsible because they are in the best position to ensure worker safety (See, New York State Labor Law §§200, 241(6) and 240(1)).  In New York City, in particular, where many of the private residential buildings are owned as cooperative apartments (or co-ops) the question of who is legally responsible for construction accidents is clear – but perhaps not easily understood.  The individual unit “owner” is generally protected by the single family homeowner exception to the Labor Law.  However, the building owner can be held liable – even for work being done solely inside an individual apartment.

            In Coleman v. City of New York, 91 N.Y.2d 821, 666 N.Y.S.2d 553, 689 N.E.2d 523 (1997) the Court of Appeals examined the liability of a cooperative corporation and held that:

the owner of the property argued that it was not liable because it leased the property to a contractor who performed the work leading to the injury and did not itself contract for or benefit from the construction involved.  We disagreed, stating that "[l]iability rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant."  (Supra, at 560, 606 N.Y.S.2d 127, 626 N.E.2d 912.)  Relying on our earlier decision in Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548, affg. 86 A.D.2d 592, 446 N.Y.S.2d 131, we articulated the bright line rule that "when the Legislature imposed the duties of section 240(1) on '[a]ll * * * owners' it intended to include owners in fee even though the property might be leased to another" (Gordon v. Eastern Ry. Supply, supra, 82 N.Y.2d, at 560, 606 N.Y.S.2d 127, 626 N.E.2d 912).

More recently, in Pineda v. 79 Barrow Street Owners Corp., 297 A.D.2d 634, 636, 747 N.Y.S.2d 236, 239 (2d Dept. 2002) where the plaintiff fell from a ladder while painting the living room of an individual shareholder without the prior consent or notice to the cooperative building owner, the Second Department held that, “as the fee owner and the owner’s agent, the defendants are absolutely liable under the Labor Law . . .”  The issue of a cooperative corporation's liability under Labor Law §241(6) was also addressed in DeNota v. 45 East 85th Street Corp., 163 Misc.2d 734, 622 N.Y.S.2d 192 (S.Ct. N.Y. Co. 1995).  In DeNota the plaintiff was cutting wood with a power saw in an apartment unit at the cooperative building owned and controlled by the defendants.  The cooperative corporation alleged that it should not be liable since it did not contract for the renovation work, which was done on behalf of the individual apartment owner.  The Court rejected this argument and denied the cooperative corporation's motion for summary judgment on this ground, explaining that (622 N.Y.S.2d at 193):

However, the statutory purpose of affording protection to workers employed in construction, excavation or demolition is to provide a recourse to the workers regardless of the absence of control, supervision or direction of the work [cites omitted].  The owner is in the position to ensure that adequate protection is provided and the statutory liability provides the motive [cases omitted].

            The Courts are merely following the centuries old definition of “owner” in coming to this conclusion.  While most people believe that they “own” a co-op apartment, in reality the apartment is owned by the cooperative corporation that owns the entire building.  The individual merely owns shares in the co-op corporation that entitles them to occupy a particular unit in the building.  Therefore, as the true “owner” of the work site the coop corporation can be held responsible for construction accidents. 

Table Saw Accidents are Preventable

            New York State provides protection for construction workers designed to force property owners and general contractors to require that job sites comply with basic safety standards.  For example, when using a table saw (a common construction site power tool) 12 NYCRR §23-1.12(2) specifically provides that every table saw “shall be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.”  The provision further requires that “Every such saw shall be equipped with a cut-off switch within easy reach of the operator without leaving the operating position.” See, Jacobus v. Black & Decker (US) Inc., 8 A.D.3d 443, 778 N.Y.S.2d 300 (2d Dept. 2004).  A construction worker injured by an unguarded table saw blade can bring a lawsuit to recover for injuries sustained, pain and suffering, lost earnings and medical expenses.

            The problem is that a walk through most construction sites will reveal that table saw guards are rarely ever used (or even on the job site) with table saws.  The combination of cluttered, uneven work sites and the pressures of completing the job on time makes the unguarded table saw an accident waiting to happen.  The way the accident happens is simple and complex at the same time.  The table saw blade guard has a few main functions – the obvious one being the physical blade cover.  In addition, the guard assembly also helps prevent a “kick back” – where the wood binds on the spinning blade and is unexpectedly propelled back towards the operator.  This can occur because the natural tendency of wood when it is partially cut is to pinch together (grabbing the spinning blade).  The metal support that holds the guard in place helps prevent the wood from pinching the blade.  In addition, the guards are equipped with anti-kickback fingers.  These work like check valves that only allow the wood to travel in one direction – if the wood tries to come backward the device stops the wood.  These guards have been around for almost 100 years – relatively unchanged from the original design.

            In theory, this safety device sounds perfect and one would wonder why it is not universally used in the field.  However, most workers have never even seen the guard because the employers never install them on the table saws in the first place.  Employers find them to be clumsy and slow down the work.  Another option would be to use table saws equipped with Saw Stop technology.  This relatively recent invention uses electronic sensors to determine if the object touching the blade is wood or flesh then stops the spinning blade in a micro-second.  Now the worker would certainly get scared and probably receive some superficial injury – however it would be nothing compared with the life altering amputations that occur when the blade keeps spinning.  Unfortunately, table saws equipped with this technology are more expensive than traditional table saws. 

            Since the worker has no real ability to complain about unsafe work sites and equipment (for fear of losing the job) we will continue to see productive workers’ hands mangled by saw blades.  Most construction workers who are missing part of a hand will tell you that the ability to bring a lawsuit (with no guarantee of success) does not make up for the suffering they endure every day.