18 January 2012

Picky homeowner not liable for injuries to tree trimmer

Byrd v Roneker, 2011 NY Slip Op 09716 [4th Dept 2011] [available here]

New York's Labor Law imposes strict liability on property owners for gravity-related injuries* suffered by workers performing construction or renovation on the property.  Thankfully for most of us, the Labor Law statute specifically exempts "owners of one and two-family dwellings who contract for but do not direct or control the work." So, you are not strictly liable if the guy you hire to clean your gutters takes a header into the hydrangeas.

In Byrd, the homeowner hired a roofer, and the roofer hired someone to "cut tree branches that extended over the roof." While the tree cutter was clearing the branches, the homeowner pointed out a limb he wanted cut down. When the tree cutter started to cut the branch, the homeowner again interjected, and asked that the branch be cut at its base. When the tree cutter tried to cut the branch at the base, he fell out of the tree, and promptly sued the homeowner under the Labor Law.**

The tree cutter argued that, by directing him to cut a specific branch and then asking it be cut a certain way, the homeowner exercised sufficient control over the tree-cutter's work to overcome the homeowner exception in the Labor Law. Not so much, said the Fourth Department, noting the critical distinction between telling the worker what to do, and telling the worker how to do it. From the decision:

There is no direction or control if the owner informs the worker what work should be performed, but there is direction and control if the owner specifies how that work should be performed.

Here, although defendant instructed plaintiff to cut down the tree limb in question and told him to cut the limb at its base, there is no evidence that defendant told plaintiff how to perform the task, nor did defendant provide plaintiff with any tools or equipment. In fact, it is undisputed that defendant was inside the house when plaintiff fell. The mere fact that defendant told plaintiff that he wanted the limb cut at its base, rather than where plaintiff initially had begun to cut the limb, does not subject him to liability under Labor Law 240[1] or 241[6].
(Byrd, 2011 NY Slip Op 09716.)

So, good news for fussbudgets everywhere. Feel free to tell your painter he missed a spot; if he falls off the ladder while touching up, it's his problem.

* Think Wil-E Coyote. The Labor Law applies when a worker falls or something falls on the worker. (See e.g. Dipalma v State of New York, 2011 NY Slip Op 09724, also decided this term, and holding that the strict liability imposed by the Labor Law applies even where the very heavy object fell "only one or two feet before it struck claimant.")
** Well, he probably went to the hospital and stuff first.

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