Thanksgiving Week brought two Court of Appeals decisions declining to apply the strict liability of New York State Labor Law 240(1) and 241(6). In the first case the Court held that these Labor Law sections are pre-empted by section 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA). In the second case the Court held that the defendants homeowners did not exercise sufficient direction and control over plaintiff’s work to overcome the one or two-family dwelling exception found in Labor Law 240 and 241.
The first case is discussed in this blog post; the second will be discussed in Part 2 of this blog entry. The LHWCA case, Lee v. Astoria Generating Co., L.P., — N.E.2d —-, 2009 WL 4016121 (November 23, 2009), involved bodily injuries sustained by an employee of a company retained to perform an overhaul of gas turbine generating units situated on four barges stationed afloat on navigable waters in the Gowanus Canal while connected to a power grid.
The barges comprise part of the Gowanus Gas Turbines electric generation facility in Brooklyn. Periodically, approximately once a decade, the barges are moved to drydock for maintenance. They are also capable of being moved for the purpose of providing electric power at other locations. Two of the barges had been so moved on at least one occasion.
The plaintiff/worker was injured when his feet slipped from under him while he was using a ladder. He fell eight feet to the base of the exhaust well, injuring his back. Under Labor Law 240(1) (the “scaffold law”) and 241(6), the barge owner would be strictly liable for the plaintiffs injuries the plaintiff would not have to prove negligence and the barge owner could not contend that the plaintiff was comparatively negligent. The plaintiffs employer moved to dismiss the complaint and the third-party complaint against it, arguing that the Labor Law was preempted by the LHWCA.
The Court of Appeals agreed. The majority, in an opinion written by Associate Judge Theodore T. Jones,held that inasmuch as the LHWCAs provision of an action in negligence shall be exclusive of all other remedies against the vessel except remedies available under this chapter (33 USC 905[b] ), Congress clearly intended the Act to not permit strict liability claims as provided inLabor Law 240(1) and 241(6). The dissent, written by Judge Carmen Beauchamp Ciparick and joined by Chief Judge Jonathan Lippman, contended that the injured employee had no cause of action for vessel negligence under maritime law because he was not working on a “vessel”.
Instead, he was a millwright performing substantial mechanical work on gas turbine electrical generating units that happened to be housed on defendant’s barges, i.e., vessels; however, other than their incidental location upon navigable waters, no other features of the gas turbine electrical generating units-nor of plaintiff’s employment working on those units-bore any relation to a traditional maritime activity or to maritime commerce. Since section 933 of the LHWCA expressly recognizes and preserves state law causes of actions against third parties, including vessel owners who are not also employers, the dissent would hold that the LHWCA does not preempt the Labor Law.
The dissent also noted that the Court of Appeals has a history of preserving state claims where doing so is not inconsistent with the federal scheme, particularly in cases involving the health and safety of our workers.
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