No. 102 Morris v Pavarini Construction

Glenford Morris, a carpenter, was injured during the construction of a building at Seventh Avenue and 34th Street in Manhattan in June 2002, when part of a form that other workers were building for the pouring of a concrete wall collapsed and crushed his hand. Morris brought this personal injury action against the construction manager, Pavarini Construction, and the owner, Vornado Realty Trust. Among other things, he alleged that they violated Labor Law § 241(6), which imposes a nondelegable duty upon building owners and contractors to"provide reasonable and adequate protection and safety to construction workers" and to comply with safety rules and regulations promulgated by the Department of Labor. He predicated his claim on an alleged violation of 12 NYCRR 23-2.2(a), a safety regulation governing concrete work, which provides,"Forms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as
to maintain position and shape."

Supreme Court rejected defendants' argument that 12 NYCRR 23-2.2(a) did not apply because
the form was incomplete. The court said, "Whether the form was not fully assembled or whether it was an integral part of the work being performed is of no consequence. Once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault...."

The Appellate Division, First Department reversed the order and dismissed the claim. "Plaintiff testified at his deposition that the form that fell on him had only one side, and thus was
'[n]ot created yet...,'" the court said. "Since the form at issue was still in the process of being created, 12 NYCRR 23-2.2(a) is inapplicable, and plaintiff's Labor Law § 241(6) claim, predicated on that provision, fails."