Labor Law Pointers

 

Volume VII, No. 1

Wednesday, November 1, 2017

 

A Monthly Electronic Newsletter Addressing

New York State Labor Law

Decisions and Trends

 

 

 

From the Editor:

 

 

Do you have a situation, we love situations. 

 

This is the first edition of our seventh year providing this newsletter to our friends and colleagues.  It seems like yesterday.  This entire newsletter got started when I realized that I was doing it anyway for myself and that I should provide the analyses to others as well.  I always read every labor law decision as it came out.  A continuous search on Westlaw was not hard to program and I had done so many years prior.  Having always been drawn to labor law cases, a severe personality and judgment flaw I have been told, I always enjoyed reading the cases and figuring out how they can help me provide a better outcome for my client and claims professional partner.  It was a logical extension to publish those thought to my colleagues and it has expanded from there.  Our format has evolved, our staff has remained largely the same over the years but the subscriber list continues to grow. 

 

I continue to encourage the sharing of our newsletter to any and all that may find use in it.  We publish in work to allow sharing of specific portions should you wish and to attach the entire edition as a document to allow sharing in that format as well.  We continue to welcome new subscribers, just drop me a line and you will be added.  All document names are hyperlinks, just give it a click and your will be taken to the official decision, all contributors names or initials are also hyperlinks and a click will create an email.

 

This month we have a plaintiff, ok, when the picture was taken he was still a future plaintiff, who decided to use a dolly as a ladder to install light in the hallway of the newly constructed condo.  What is not seen in the photo is the 6 foot A-frame ladder leaned up against the wall.  When the plaintiff falls from the dolly as it tips and rolls away from him he sustains severe injury to his left foot, actually losing three toes in the fall.  Plaintiff had been advised to always wear his employer provided steel toes boots (sitting in his truck right outside) while on the job, a direction he ignored to his detriment.  He was not, however, specifically instructed to use the A-frame ladder instead of the back of the dolly.  Plaintiff, at his deposition testified that in hind sight he should have used the ladder, but that at the time he had not been directed to use it and he never even considered using it.  Think about these facts for a minute and then scroll down and see if we agree.

 

 

Dolly as ladder

 

            First of all the plaintiff is proper as he is a person so employed.  Second, assuming he sues the owner the defendant is also appropriate.  The general job for which he is there, installation of lights is a covered project as construction or an alteration and the plaintiff has obviously fallen from a height so we have a prime facie case of labor law 240(1).  We can then move on to the defense of sole proximate cause. 

Step one; was the plaintiff provided with an appropriate safety device?  Well the A-frame ladder which would have prevented this accident was right behind him and he had been provided steel toed boots by his employer which would have prevented the injury.

Step two; was the appropriate safety device available to the plaintiff? The ladder was right there, clearly available and his boots were right in his truck.  The appropriate safety device need not be right next to the plaintiff, but it needs to be on site and the plaintiff needs to know it is available,  Here plaintiff knew to the safety devices were available.

Step three, the plaintiff needs to have been instructed to use the available and appropriate safety device of to know he was expected to use it.  Here the plaintiff certainly knew he was to be wearing the steel toed boots which would have prevented the injury but there appears to be an issue with the instruction to use the A-frame ladder.  My argument to the court would be a simple “come on”, does the plaintiff expect the court to believe that he did not know he was expected to use the ladder instead of climbing u the back of a dolly on wheels? 

Step four, the plaintiff needs to misuse or fail to use the available and appropriate safety device.  Here the plaintiff clearly did just that.

Step five, the failure to use or misuse must be for no good reason.  He the plaintiff has no real excuse for his failure.

 

So how is this all going to turn out? The failure to use the safety device, the steel toed boots, is as clear as it gets.  Had plaintiff worn them he would not have been injured.  So is that the end of the case?  Is it the sole proximate cause of his injury?   Maybe not.  Recall that in the case of the other safety device, the ladder, the instruction to the plaintiff was not clear.  If the court finds that the plaintiff was not  instructed to use the ladder instead of the dolly, and that failure means that there is no sole proximate cause for the failure to use the ladder, the failure to wear his provided steel toes boots does not save the day as now the failure to use the provided ladder is also a cause and thus the failure to wear the boots can never be the SOLE proximate cause of the accident.

 

We are still recovering from the summer doldrums it appears, not a lot of cases this month.  We welcome Mark Schulz back from his honeymoon, so our labor law team is back up to full strength, and we have actually added a new member.  Ashmita Roka, a recent law school graduate, passer of the bar and all around smart lady, is our newest addition.  That makes nine of us stationed in Buffalo, two in the NYC area, one in Albany and one in Lake Placid.  Our team is here to handle every aspect of a labor law claim, from initial investigation with our 24 hour Labor Law response team, to coverage attorneys to analyze the risk transfer opportunities (or defenses depending on the circumstance), through discovery, motions, appeals, mediation and trial.

 

I hope everyone is enjoying the fall, it appears that summer may really be over here in Buffalo, saw a car covered with snow on the thruway Monday, and we will see you all next month.  David

 

 

 

David

 

Adams HighC

 

David R. Adams
Hurwitz & Fine, P.C.
424 Main Street

Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916

Fax:  716.855.0874

Cell:  716.553.6901
Email:  dra@hurwitzfine.com
H&F Website:  www.hurwitzfine.com

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to dra@hurwitzfine.com or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

 

Ciechorski v City of New York

October 3, 2017

Appellate Division, First Department

 

Plaintiff’s was working on a barge being handed heavy buckets filled with epoxy from workers at a higher level and then transporting the buckets by hand on his own level.  The barge workers would lean, bend, or kneel as necessary to hand the buckets to plaintiff, who was 6'5", allowing him to grasp each bucket before it was released.  Plaintiff claimed an injury of pain allegedly caused by his repeated work, over the course of weeks. 

 

The trial court granted defendant Hudson’s motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1), 200, and common-law negligence claims as against it, granted the cross-motion of defendants City of New York and New York City EDC for summary judgment dismissing the Labor Law § 240(1) claims as against them, and denied plaintiff's cross-motion for partial summary judgment on the Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The trial correctly dismissed the Labor Law § 240(1) claim as against the City of New York because the statute does not cover plaintiff's injury. Even viewed in the light most favorable to him, plaintiff "was exposed only to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1)”.

 

PRACTICE POINT: The plaintiff’s claimed injury simply is not the type of injury, or more precisely not an injury caused by the type of risk the statute is designed to protect against.  The plaintiff was injured by the repetitive task of lowering buckets of epoxy, not by a true gravity induced injury of either a falling worker or a falling object.  It appears that there are lengths to which the first department will not allow the labor law to be stretched.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department affirmed, finding the court also correctly dismissed the Labor Law § 200 and common-law negligence claims as against Hudson, since the evidence showed that the means and methods of the work were determined solely by plaintiff's employer, nonparty Reicon Group LLC. The evidence showed that Hudson exercised only general oversight over the performance of the work and site safety conditions, which is insufficient to trigger liability.

 

Cross v CIM Group, LLC

October 3, 2017

Appellate Division, First Department

 

Plaintiff was walking across an installed steel "q-decking" floor on a construction site, when two sheets of the decking floor collapsed, causing him to fall to the floor below. Even though the decking was to become a permanent part of the floor of the building under construction, it is undisputed that, at the time of the accident, additional work needed to be done, including the pouring of concrete, before the floors would be complete. The trial court denied plaintiffs' motion for partial summary judgment on the issue of liability on their Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department unanimously reversed the trial court and granted the motion. Even if plaintiff was working on what would become a permanent part of the building, and not on a scaffold or ladder, he was exposed to an elevation-related hazard and is therefore entitled to the protection of the statute. The steel decking that, together with concrete, would become the floor "served, conceptually and functionally, as an elevated platform or scaffold" (Becerra v City of New York, 261 AD2d 188, 189 [1999]).

 

Since "sound scaffolds . . . do not simply break apart" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]), plaintiff met his initial burden on his motion by showing the flooring collapsed (see Berrios v 735 Ave. of the Ams., LLC, 82 AD3d 552 [1st Dept 2011]).

 

PRACTICE POINT: This case provides the opportunity to address an important issue, the nature of the safety device which fails.  Recall that a plaintiff walking down a set of permanent steps who falls does not have a labor law claim while a plaintiff walking down a set of temporary steps in the exact same situation will likely have a claim.  The same holds here for the floor through which the plaintiff fell, had the floor been completed, and thus the permanent floor, and the plaintiff fell through it, no 240(1) claim would accrue.  However, as here, when the steps are still being constructed and the plaintiff fall through them, it is a valid 240(1) claim.

Pappas v AT&T Inc.

October 12, 2017

Appellate Division, First Department

 

Plaintiff, an experienced electrician, was injured at defendants' premises when he attempted to perform work on electrical equipment that had not been de-energized. In support of their motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, defendants contended that plaintiff was responsible for checking for voltage on any equipment or component before working on it, failed to properly perform a voltage test with a tic tracer and that that failure was the sole proximate cause of the accident.

 

In opposition, the trial court held that plaintiff raised an issue of fact whether the electrical prints or drawings supplied by defendants failed to show the locations of potential transformers that may have been the source of the voltage that injured him. Accordingly, the trial court denied defendants’ motion for summary judgment.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The First Department affirmed, holding that contrary to defendants' argument that the accident would not have happened but for plaintiff's failure to perform the voltage test properly, plaintiff's expert asserted that a tic tracer test performed without knowledge of where a potential transformer was connected was inconclusive. Defendants' failure to show that potential transformers not shown on the drawings were not the source of the voltage renders the doctrine of res ipsa loquitur, on which they rely, inapplicable.

 

 

Medrano v Port Auth. of N.Y. & N.J.

October 17, 2017

Appellate Division, First Department

 

While applying fireproofing material to a ceiling beam by hand, plaintiff fell from an unsecured defective ladder given to him by his assistant foreman, to whom he had complained about the ladder. The assistant foreman averred that he had not supplied the ladder, plaintiff had not complained to him about it, and his coworker averred plaintiff worked from the ground all day.  The trial court granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

 

The First Department held the affidavits submitted by defendant contradicted plaintiff's account of the accident, and thus called into question his credibility.  Because there was a question of fact as to how the incident occurred, the trial court’s decision was unanimously reversed.

 

PRACTICE POINT: The advantage of through investigation into the nature of the accident, done promptly after the accident occurs cannot be over emphasized.  Here a simple discussion with the plaintiff’s supervisor established that the plaintiff had not been working on a ladder at all the day of the accident, but rather that had been working from the ground and that thus the accident was not gravity related.  The plaintiff, of course, had a different version but there was, at least, a question of fact for the jury.  This case exemplifies why our Labor Law Team has 24 hour response ability.  We will be on the scene, anywhere in the state, within hours to investigate an accident, and obtain the proof necessary to defend against the labor law claims almost certain to follow any construction related injury.  The physical evidence, the interviews with witnesses, the collection and preservation of critical documents, the statements of the future plaintiff, all allow the defense of the once and future law suit to get off to a solid start.  If the claim is valid it allows for early and fair resolution, and if the claim is questionable, then the ability of the defense to obtain the necessary proof is not hampered by time and potential allegiance by co-workers. 

 

 

Cortes v Skanska USA Civ. Northeast, Inc.

October 19, 2017

Appellate Division, First Department

 

Plaintiff fell off a stair tower during the scope of his employment with Phoenix Constructors, a joint venture, of which defendant Skanska was a member. The trial court, upon reargument, granted Skanska's motion for summary judgment, and denied as academic plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims. 

 

Labor Law § 240(1) (DRA) 

 

As it is undisputed that plaintiff's fall occurred during his work with Phoenix, a joint venture, and Skanska was a member of this joint venture, plaintiff's exclusive remedy against Skanska is workers' compensation. Plaintiff’s reliance on Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594 (2d Dept 2010) is misplaced as the issue was whether defendant was an alter ego of the employer so as to be entitled to invoke the exclusivity provisions of the Workers’ Comp. Law. Plaintiff’s contention that Skanska, even though it was an employer, owed an independent duty under the Labor Law was not only rejected but declared by the Court of Appeals as “fundamentally unsound” as an attempt to circumvent the exclusivity provision of the Workers’ Compensation Law.  “[A]n employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, a sort of Dr. Jekyll and Mr. Hyde”.  

 

PRACTICE POINT:  The protections of section 11 of the comp law regarding sometimes cleverly attacked as here.  But recall that there is also an opportunity to expand that protection with the special/general employer argument.  This argument, which provides protection to both the special and general employer, can be very useful in defending specific types of cases.  Crane operators, temporary employees, workers “borrowed” from other trades on a work site are all examples of potential special employee situations.  Again, as above, time can be critical in developing the evidence necessary to successfully make the special employee claim successful, and thus the protection effective.  An early investigation by an attorney well versed in this type of matter can be the difference between a successful defense, and a missed opportunity. 

 

 

Perez v Beach Concerts, Inc.

October 26, 2017

Appellate Division, First Department

 

Plaintiff fell while helping set up the second tier truss system of a sponsorship booth. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.

 

Labor Law § 240(1) (DRA) 

The Frist Department affirmed. First, the court determined that Live Nation was a proper defendant under the Labor Law as an “owner” in its role as licensee. The record demonstrates that Live Nation had the sole authority to operate and maintain the premises, including the right to insist that workers on the site follow proper safety practices.

Second, as to whether the activity plaintiff was engaged in was a protected activity, the truss system plaintiff was constructing constituted a "structure" because, viewed as a whole, it extended the height of the booth from 10 feet to 16 feet, was comprised of several interlocking parts that were connected in a specific way, and required the use of a forklift and several people to construct it (Lewis Moors v Contel of N.Y., 78 NY2d 942, 943 [1991]; McCoy v Kirsch, 99 AD3d 13, 16-17 [2d Dept 2012]).

Although this truss system was being set up to allow for the display of branding, it was not a " decorative modification' because the work. . . entail[ed] far more than a mere change[] [to] the outward appearance of" the booth and, constituted an alteration to the preexisting structure.

PRACTICE POINT: There are two separate and important issues to be addressed here.  First is the status of the licensee as an owner for the purposes of the labor law. While the court here describes the defendant as an owner, they would be more appropriately be defined as an agent of the owner.  The definition of their status aside, the evidence is identical, the appropriate defendant will have the AUTHORITY to supervise, direct of control the means and methods of the plaintiff’s work, including safety issues.  That makes the defendant, whether the actual owner, an agent of the owner or a contractor an appropriate defendant, 

 

The second issue is if the display the plaintiff was assembling was a structure.  You will recall that a structure, for purposes of the labor law, is any object made of component parts.   Clearly the truss system here was made of component parts and required substantial effort from a forklift and multiple workers to assemble it and hoist it into position.

 

 

 

Assevero v Hamilton & Church Props., LLC

October 11, 2017

Appellate Division, Second Department

 

Decedent allegedly fell from a ladder while working on a renovation at a building owned by defendant. According to decedent, an unsecured extension ladder shifted as he was descending, and he fell from the third floor of the building to the basement. During a prior appeal, Decedent died, and plaintiff moved to amend the complaint to add a cause of action for wrongful death.  The autopsy report indicated that the cause of the decedent's death was "acute intoxication due to the combined effects of fentanyl, benzodiazepines, lidocaine and cyclobenzaprine," and that the manner of death was "misuse of prescription medication."

 

The proposed wrongful death cause of action was based, in part, on allegations that decedent died as a result of "complications of treatment for pain resulting from" the construction accident.  The trial court granted plaintiff's motion for leave to amend the complaint, and Defendant opposed, asserting that the court should not have permitted plaintiff to amend the complaint.

 

Labor Law § 240(1) (DRA) 

The Second Department held defendant failed to demonstrate surprise or prejudice resulting from the delay in asserting the wrongful death cause of action against it as the decedent died during the pendency of his appeal and that the trial court's decision and order on that appeal reinstated plaintiff's claims for violations of Labor Law §§ 240(1) and 241(6). The Court also found that the proposed amendment was neither palpably insufficient nor patently devoid of merit. 

Contrary to the defendant's contention, the Court also affirmed the trial court’s determination that the wrongful death claim was timely under the relation-back doctrine, relating the filing of the claim to the original filing date of the complaint thus avoiding a statute of limitations issue.

PRACTICE POINT:  The issue here is the nature of the wrongful death claim.  While it is recognized that any damages naturally flowing from the initial injury are able to be claimed in the lawsuit, here the extent may well seem to some, to be an overextension.  My only knowledge of how the plaintiff died is from this case, but to me it seems improper to allow a wrongful death claim where the plaintiff died from "misuse of prescription medication."  To a certain extent it depends on the circumstances of the death.  Had the plaintiff simply made an error and taken too much of a medication on a single occasion which lead to his unfortunate death, that may be a proper extension of the case to wrongful death. On the other hand had the plaintiff engaged in a course of repeated improper use of medication and unfortunately passed away, that does not seem to be to be appropriate as a wrongful death claim. 

There is no question that the abuse of many pain medications is a huge problem in our society today.  Addiction has touched all of our communities, and many of our families, and neither I nor the courts should ignore that fact, but that does not make the misuse of pain medications an extension of the injury caused in a construction accident.  This case is troubling in that it may now pave the way for not just wrongful death claims, but for an expansion of claims of addiction and the need for other related services by plaintiff’s who may abuse the medications prescribed for them by their providers.  While these issues are very real, to lay them on the doorstep of the owner of a building where the plaintiff was working seems too much of an expansion of the allowable damages in a personal injury case based on the labor law.

 

 

 

Honeyman v Curiosity Works, Inc.

October 18, 2017

Appellate Division, Second Department

 

 

Plaintiff was performing electrical work on the installation of an art show at a convention center when two panels comprising the walls of an exhibition booth fell on him. Defendant Metropolitan Exposition Services, Inc., allegedly was retained to effectuate and supervise the installation of the art show. The trial court, upon renewal, granted defendant’s motion for summary judgment dismissing plaintiff's Labor Law §§, 240(1), 241(6), 200 and common-law negligence claims, which had been denied in a prior order.

 

Labor Law § 240(1) (DRA) 

 

The Second Department held defendant's evidence established the absence of a causal nexus between the injured plaintiff's injury and a lack or failure of a device prescribed by Labor Law § 240(1) In opposition, plaintiffs failed to raise a triable issue of fact because the device identified by the plaintiffs—a pin and bracket system—was not meant to function as a safety device in the same manner as those devices enumerated in Labor Law § 240(1), but, rather, served to support the exhibition booths once fully constructed. 

 

PRACTICE POINT:  Where the claim is based on a falling object the object needs to be one which is being hoisted, being secured or an object which should be secured.  Here the both that was being assembled, two walls which, once assembled would be held together by pins and brackets, could not be secured by any type of safety device during the erection process.

 

Labor Law § 241(6) (MAS)

 

The Court held defendant established that none of the specific and concrete provisions of the Industrial Code alleged to have been violated, 12 NYCRR 23-1.5, 1.7, 1.8, 1.11, 1.30, 2.1, 6.1, and 6.2, were applicable to the facts of this case.

 

Labor Law § 200 and Common-Law Negligence (VCP)

 

The Second Department reversed, finding that the Supreme Court erred in granting, upon renewal, that branch of the defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.   Where, as here, the injured plaintiff's accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law § 200 will be imposed if the general contractor had control over the work site and either created the dangerous condition or had actual or constructive notice of it.  Contrary to the defendant's contention and the Supreme Court's conclusion, the defendant failed to establish, prima facie, that it did not serve as a general contractor or agent with control over the work site. Further, the defendant failed to demonstrate, prima facie, that it did not create the dangerous condition or have constructive notice of it. Since the defendant failed to meet its prima facie burden with regard to that branch of its motion which was to dismiss the Labor Law § 200 cause of action insofar as asserted against it, that branch of the motion should have been denied, regardless of the sufficiency of the opposition papers.

 

 

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

 

 

12 NYCRR § 23-1.9 – Drinking water and sanitation; Toilet facilities; Accessibility of toilet facilities.

 

Regulation § 1.9(c)(3), Toilet facilities, pertains to Accessibility of toilet facilities, and their availability, which is deemed not a safety regulation.

 

Fox v Hydro Dev. Group, Inc., 222 AD2d 1124, 635 NYS2d 897 (4th Dept 1995);

 

Fox found that 1.9(c)(3) is not a safety reg. but rather is a health reg., mandating that facilities be located reasonably close to the worksite; regardless, it is inapplicable b/c π was injured while waiting for a portable toilet to be vacated.

 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

 

Labor Law Pointers

 

Editor
David R. Adams


Associate Editor
V. Christopher Potenza


Associate Editor
Steven E. Peiper


Associate Editor
Marc A. Schulz

 

Associate Editor
Eric D. Andrew

 

Associate Editor
Howard B. Altman

Associate Editor
Brian F. Mark

 

Labor Law Team

 

            David R. Adams, Team Leader                  Steven E. Peiper

            dra@hurwitzfine.com                                 sep@hurwitzfine.com

 

            Dan D. Kohane                                          Jennifer A. Ehman

            ddk@hurwitzfine.com                                jae@hurwitzfine.com

 

              Marc A. Schulz                                      Eric D. Andrew

            mas@hurwitzfine.com                          eda@hurwitzfine.com

           

            Michael F. Perley                                  Howard D. Altman

            mfp@hurwitzfine.com                          had@hurwitzfine.com

           

    Christopher Potenza                                    Ashmita Roka

vcp@hurwitzfine.com                                     ar@hurwitzfine.com

 

Brian F. Mark                                                                                   

bfm@hurwitzfine.com                                                          

 

 

 

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Phone:  716.849.8900
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