Ambiguous Jury Instruction Requires New Trial in Injured Roofer’s Labor Law § 240(1) Case

A recent appellate decision, Arto v. Cairo Construction (decided Sept. 18, 2013), illustrates the need for clear jury instructions in construction accident cases brought under New York Labor Law § 240(1).

There, the Appellate Division, Second Department granted plaintiff a new trial on his Labor Law § 240(1) claim following a jury verdict for defendants.

Defendants were hired by a homeowner to perform work in connection with a home renovation project.  Plaintiff was employed by a roofing contractor and was injured while working on the house’s roof.

At trial, there was conflicting testimony as to whether defendants “supervised and controlled” the roofing work.  Specifically:

Arnold [the homeowner] testified that he hired the defendants to replace the windows, siding, and roof on the house, that the defendants hired the injured plaintiff’s employer to do the roofing work, and that the defendants supervised and controlled the roofing work. The injured plaintiff also testified that the defendants supervised and controlled his work. In contrast, Joseph Cairo testified that he was hired only to replace the siding and windows, and that he recommended a roofing contractor to Arnold, but that Arnold contracted with the roofing contractor. Joseph Cairo also testified that he did not supervise or control the injured plaintiff’s work.

At the close of evidence, the court submitted the following question to the jury:  “Was defendant Joseph Cairo d/b/a Cairo Construction the general contractor, coordinating the trades, on the project?”

This, held the court, was error.

“In addition to owners and general contractors, Labor Law § 240(1) imposes liability upon agents of the property owner who have the ability to control the activity which brought about the injury.”

In this case,

the evidence at trial demonstrated that the home renovation project included aspects other than the replacement of the siding, windows, and roof, which aspects the plaintiffs did not claim were controlled by the defendants. In this context, the question as to whether the defendants were acting as the “general contractor, coordinating the trades on the project” was ambiguous because it was unclear whether the jury was to consider whether the defendants “coordinat[ed]” all of the trades on the project, or just the siding, windows, and roofing trades. In light of the trial evidence, the jury should have been instructed to determine whether the defendants were acting as the homeowner’s agent, with the authority to supervise and control the injured plaintiff’s work on the roof.

Since the error was not harmless, a new trial was required.

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