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When somebody slips and falls or otherwise sustains an injury due to a dangerous condition on another’s property, a crucial question regarding the property owner’s liability is often whether the owner had notice of the dangerous condition but failed to take adequate steps within a reasonable time to prevent injury, such as by fixing or removing the dangerous condition or posting a notice or warning about the danger.
The burden, of course, is on the plaintiff to prove all of the elements of a negligence claim in order to establish liability, including the defendant’s notice of the condition. In fact, if a defendant can prove that it did not have notice, the case may be dismissed on summary judgment before any trial ever begins.
There are two types of notice that the courts may consider: actual notice and constructive notice. Actual notice means the owner actually knew of the condition. Constructive notice means that the owner should have known about the condition, whether it actually did or not. Constructive notice is often proven by showing that a reasonable inspection would have revealed the problem, and that the property owner had a duty to inspect its property at reasonable periods, such as before workers are to begin working at a job site.
When a construction worker is injured on a job site, the injured employee often looks to New York Labor Law to hold the job site owner or general contractor liable for the employee’s injuries and monetary damages. New York Labor Law Section 200 places a general duty on employers to protect the health and safety of their employees. In the recent case of McAllister v. Phoenix Constructors, the court referred to section 200 as codifying the common law duty to provide workers with a safe place to work. The plaintiff in this case was manually hoisting a 250-300 pound beam with a crew of ironworkers in a subway tunnel when he slipped on some grease or creosote. The beam struck him when he fell and fractured his wrist, and the worker sued under various sections of law, including Section 200. The defendants moved for summary judgment on the section 200 claim, claiming that they did not have notice of the slippery condition. The court denied the motion because the defendants did not come forward with any evidence as to when the area was last inspected.
Even though the plaintiff survived summary judgment, he will still have to prove to a jury that the defendant had actual or constructive notice, perhaps by proving that the site was not inspected when it should have been. Proving negligence can be a challenge, and any slip can be disastrous to the case. Personal injury attorney Leandros Vrionedes has experience dealing with negligence cases and construction site injuries. If you have suffered an on-the-job injury, contact the New York City law office of Leandros A. Vrionedes, P.C. for assistance.