Labor Law §240: Bowles v. Clean Harbors Environmental Services, Inc.

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Appellate Division, Third Department

Labor Law §240

Bowles v. Clean Harbors Environmental Services, Inc.
507791
Appealed from Supreme Court, Schenectady County

Background: This is an appeal from an order which granted defendant’s motion for summary judgment dismissing the complaint. Schenectady International, Inc. hired defendant to clean certain on-site bulk chemical storage tanks located at one of its facilities in the City of Schenectady.  Pursuant to Schenectady International’s safety policies, defendant could not enter or begin cleaning any tank until Schenectady International inspected the air quality in the particular tank and issued a confined space permit. 
During the course of the cleaning operation, plaintiff Charles J. Bowles, a safety technician employed by Schenectady International, was informed that defendant was ready to begin cleaning a certain tank and that a confined space permit was needed. In order to reach the opening at the top of the tank, plaintiff used a fiberglass ladder that had been propped against that tank instead of using the ladder affixed to the tank. According to plaintiff, as he reached over to place a meter on the top of the tank, the fiberglass ladder “kicked out” from under him and he fell approximately 10 feet to the floor, sustaining serious injuries. Plaintiff and his wife, derivatively, commenced this action against defendant alleging common-law negligence and violations of Labor Law §§200, 240(1) and §241(6).  Supreme Court dismissed the complaint.

Ruling: The order is affirmed. There was no error in the dismissal of plaintiffs’ Labor Law §240(1) and §241(6) causes of action. In order to be liable under either section, a defendant must be the owner, owner’s agent or a contractor. To be found liable as a contractor, a defendant must have been granted the power to enforce safety standards and hire subcontractors. Liability premised on a defendant acting as an owner’s agent requires that the defendant have authority to supervise and control the activity which brought about the injury. Here, defendant was hired for the limited purpose of cleaning the tanks. Although defendant had supervisory control over its employees and the manner and method it used to clean the tanks, it could not enter or commence cleaning the tanks until Schenectady International issued a confined space permit.

Michael J. Hutter of Powers & Santola, LLP for the appellants and Leah W. Casey of Carter, Conboy, Case, Blackmore, Maloney & Laird, PC for the respondent