Labor Law Pointers - Volume IV, No. 12

Labor Law Pointers

Volume IV, No. 12
Thursday, October 8, 2015

Brought to you by Hurwitz & Fine, P.C.
Editor: David R. Adams
[email protected]


Hurwitz & Fine, P.C.’s monthly electronic newsletter, Labor Law Pointers, offers a review and concise analysis of current and significant New York State Labor Law cases in four distinct areas of law including New York Labor Law Section 240(1), 241(6), 200 and indemnity. We approach these cases by analyzing and addressing all potential defenses to the Labor Law claim, and conducting a comprehensive and complete review of all contracts and policies to assess whether it is appropriate and possible to shift potential risk to other parties or entities based on contracts, additional insured status or common law indemnification. 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 [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at 716-849-8900.

 

From the Editor: 

Do you have a situation; we love situations.

Usually the courts are back into high gear by this time but this month we do not have a lot of cases.  Fall is in the air and we will soon have to deal with Dan Kohane’s lament as he moves back from the beach.  Happy Thanksgiving (a bit early) to our Canadian friends.

We have several cases of interest this month, covering the single family home exception and the basis for the sole proximate cause defense.  The need to have an expert to verify the status of a safety device as appropriate is highlighted, and in fact the issue that sometimes even having an expert to opine that a safety device is appropriate may not be enough.  Suffice it to say that I do not agree with the determination of the court below where there are conflicting expert opinion as to a safety device’s appropriateness and the court’s decision that the device was not appropriate.  It seems to me that where an expert has opined that a safety device is appropriate that the court has exceeded its authority in making determinations on issues of law by granting Summary Judgment to the plaintiff while there is an expert opinion that the temporary steps were the appropriate safety device.  See the O’Brien v Port Auth. case below.

I am sent by readers, and find myself, photos which outline the absurdity of what people do on construction sites.

The question in the first photo is whether a co-worker upon whom you climb is an appropriate safety device?

The second begs the question whether or not it is an appropriate safety device where the scaffold is balanced on a tower of buckets.

The third photo outlines the basic principle that generally cutting down or trimming a tree is not an activity protected by the labor law as a tree is not a structure.  I do however like the way this future plaintiff is cutting the limb.

            As always, please feel free to reach out to any of us with any questions you may have related to the labor law, or any other question you may have.  We are always here to help.

            In addition we offer training on all aspects of the labor law, loss transfer, defending labor law cases and investigation these issues.  We are happy to provide training on site of you or via a webinar.  Please feel free to ask for whatever type of training you may feel may be helpful for your team.

            Until next month enjoy the fall and keep your feet on the ground, to many bad things happen to people on elevated work sites.

 

 

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:  [email protected]
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 [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

O’Brien v Port Auth. of N.Y. & N.J.
September 8, 2015
Appellate Division, First Department

O’Brien, an operating engineer, was responsible for maintaining the welding machines on a construction site at the World Trade Center.  He was outside attempting to walk down a wet temporary steel staircase when he allegedly slipped and fell down.  The trial court denied O’Brien’s motion and defendants Port Authority, Tishman Construction and Atlantic Housing’s cross-motions for summary judgment under Labor Law § 240(1).  The trial court also granted O’Brien summary judgment under § 241(6) based on regulation (12 NYCRR) § 23-1.7(d). 

Labor Law § 240(1) (DRA)

The majority reversed and granted O’Brien summary judgment.  The majority held that a fall down a temporary staircase is the type of elevation-related risk which the statute applies and that the staircase is a safety device under the statute because it had been erected to allow workers access to different levels of the worksite.  In support of its decision, the majority relied on Ervin v Consolidated Edison of N.Y., a case involving a worker who fell when the temporary structure he was descending gave way, and the First Department stated “it is irrelevant whether the structure constituted a staircase, ramp or passageway since it was a safety device that failed to afford [plaintiff] proper protection from a gravity-related risk.”  As a result, O’Brien was entitled to summary judgment under § 240(1).

Justice Friedman’s dissent would affirm the trial court’s decision to deny summary judgment to both parties as the record includes conflicting expert affidavits with respect to the adequacy of the staircase under prevailing safety standards, thereby creating an issue of fact whether the accident arose from a violation of the statute.  According to the dissent, the question raised by the conflicting expert affidavits is whether there was an appropriate safety device that could have prevented the accident.  “What the statute requires is an adequate safety device, not a device so perfect that the worker need not exercise due care on his own behalf – a standard that would be unattainable.”  

PRACTICE POINT:  The dissent seems the better argument to me, where there is an expert opinion that there was no other available safety device, and that the device present, the temporary staircase, I do not understand how the majority found a violation.  Countless cases state the basic tenant of the labor law, that not every fall is a violation of the labor law.  If the safety device is the best available, and the plaintiff is injured, what else could the defendant have done.  If there is no defect in the safety device, the statute should not have been found to be violated.  This emphasizes the need for an expert to testify regarding the adequacy of the safety device.

Labor Law § 241(6) (JAE)

With regard to plaintiff's § 241(6) claim insofar as it was predicated on a violation of 12 NYCRR § 23-1.7(d), the First Department found the grant of summary judgment in error.  Issues of fact existed concerning whether someone within the chain of the construction project had notice of the hazardous condition.

Kutza v Bovis Lend Lease LMB, Inc.
September 8, 2015
Appellate Division, First Department

Plaintiff’s decedent, a tile finisher, sustained injury to his left hand when he tripped and fell over construction debris at a building.  The jury found that defendant Bovis violated Labor Law §241(6) by failing to comply with (12 NYCRR) § 23-1.7(e)(2), but attributed 50% fault on Plaintiff’s decedent.  The trial court denied plaintiff’s motion under CPLR §§ 4401 and 4404(a) to set aside this jury finding as well as the $100,000 award for pain and suffering and no damages for loss of consortium.

Labor Law § 240(1) (DRA)

The First Department held the trial court erred in charging the jury on comparative fault because the jury verdict established that defendants were responsible for keeping the area clear and plaintiff’s decedent was not obligated to clear the floor of garbage and there was no clear path he could use.  Thus, there was no evidence of culpable conduct on the part of plaintiff’s decedent.

With respect to the pain and suffering award, the First Department found it materially deviated from reasonable compensation based on the nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety, and significant limitation of the use of his left hand due to permanent contracture of the fingers.  The court also held the decision not to award damages for loss of consortium was against the weight of the evidence as plaintiff described changes in the decedent’s behavior after the accident and explained the impact this had on their relationship.

As a result, the court granted plaintiff’s decedent’s motion and ordered a new trial unless the parties stipulated that there was 0% fault on plaintiff’s decedent and increased the verdict to $400,000 for pain and suffering and $50,000 for loss of consortium.
                                
PRACTICE POINT:  First, always put your objections to the verdict sheet on the records or your opportunity is lost for an appeal.
Second, make sure the verdict sheet does not create a situation where the culpable conduct of the plaintiff is eliminated from the jury’s purview.  Here, a jury sheet that established total responsibility for the debris on the floor to be that of a defendant eliminated the possibility that the plaintiff was comparatively liable.  I have to admit that without looking at the jury verdict sheet I cannot imagine how that was possible, but in the view of the court that is what happened.
Third, if you get too good of a verdict the court will take it away from you and your victory is simply Pyrrhic; keep your eye on the end result which includes appeals.  

 

Segota v Tishman Constr. Corp. of N.Y.
September 15, 2015
Appellate Division, First Department
                                        
Plaintiff, a 44 year old carpenter who fell fourteen feet from a wall while working was awarded summary judgment on his Labor Law § 240(1) claim, and obtained a jury verdict on his damages only trial in the amount of $60,000 for past pain and suffering and $250,000 for past lost earnings.  However, the jury declined to award any damages for future pain and suffering, future lost earnings or future meds.  The trial court denied plaintiff’s motion to set aside the verdict.

Labor Law § 240(1) (DRA)

The First Department ordered a new trial because the court disagreed with the trial court’s decision to preclude the testimony of plaintiff’s wife and coworker.  The court found such testimony would have added to the testimony of other witnesses in that the coworker saw the fall and his testimony as to the impact to plaintiff’s foot could have been highly probative on the claim that the continuing pain in his foot was caused by the accident and did not pre-exist.  The testimony from plaintiff’s wife would not be cumulative as although she did not assert a derivative claim she had a unique perspective on her husband’s condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

PRACTICE POINT:  The standard for prelusion of a witness is if that the testimony sought to be precluded as cumulative must neither contradict nor add to the testimony of a prior witness.  It is critical to recall that the testimony may be neither to be precluded as cumulative.

 

Golubowski v City of New York
September 29, 2015
Appellate Division, First Department
                                        
Plaintiff allegedly sustained injuries when he slipped from the third rung of a six-foot ladder that was wet and slippery due to residual water leaking from an overhead sprinkler system.  Plaintiff was a plumber and dismantling the sprinkler system in a building owned by defendant 150 William Street and managed by defendant Braun Management (collectively “Defendants”).  Plaintiff and his coworker had both a scaffold and a ladder for reaching the overhead pipes.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ motion to dismiss that claim.

Labor Law § 240(1) (DRA)

The First Department rejected defendants’ sole proximate cause argument that plaintiff knew he was expected to use a scaffold and one was available because the record demonstrated that plaintiff’s coworker was using the scaffold at the time of the incident.  Thus, the court granted plaintiff’s motion for summary judgment on his § 240(1) claim.

PRACTICE POINT:  Once again the perfect opportunity to reinforce the three aspects of a sole proximate cause defense.  There must be an 1) appropriate and 2) available safety device which 3) the plaintiff was instructed to use or knew he was expected to use and, for no good reason, chose not to use or misused.  All must be present for the defense to be even considered by the court.

 

Rossi v Flying Horse Farm, Inc.
September 16, 2015
Appellate Division, Second Department

Plaintiff was allegedly injured when he fell from a ladder while performing work on the door of defendant Flying Horse Farm’s large barn.  The property included a “three-horse” barn, and a large barn with eight stalls, a hayloft, an office and an apartment described as a part-time residence.  After depositions were held, the trial court granted defendant’s motion to amend its answer asserting the homeowners’ exemption.  The trial court then granted plaintiff’s cross-motion to dismiss that affirmative defense as well as defendant’s recalcitrant worker defense.

Labor Law § 240(1) (DRA)

The Second Department held plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowners’ exemption under Labor Law §§ 240(1) and 241(6).  Among other things, plaintiff demonstrated that defendant described itself as “essentially . . . a business for keeping horses,” and its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident.

As a result, the court held defendant’s boarding stable was used primarily for commercial purposes and did not constitute a residence under the homeowners’ exemption.  Therefore, plaintiff was entitled to summary judgment dismissing defendant’s affirmative defense based on the homeowner’s exemption.  However, the court reversed the trial court’s sua sponte decision to dismiss the recalcitrant worker defense as plaintiff did not move to dismiss that defense and the trial court thus erred in awarding the unrequested relief. 

PRACTICE POINT:  The homeowner’s exception is available only to owners of property which is used for non-commercial purposes and is a one or two family dwelling.  It is not available where, as here, the primary use of the building or structure on which the plaintiff is working is commercial.

 

Moreira v Osvaldo J. Ponzo
September 16, 2015
Appellate Division, Second Department
                                        
Moriera was in the process of cutting and removing a 50-60-foot tall tree with 3½-4-foot diameter when he fell from the roof of a house owned by defendant.  Moriera and his nephew were hired by defendant to remove the tree.  The trial court denied defendant’s motion for summary judgment on the Labor Law §§ 240(1) and 241(6) claims asserting that Moreira was not engaged in an activity covered under those statutes.

Labor Law § 240(1) (DRA)

The Second Department noted that defendant conceded plaintiff fell from the roof while in the process of removing a tree that had come to rest at its location during a hurricane, that the tree removal was the first step in the process of undertaking structural repairs to the building, and that the repairs could only be commenced by removing the tree from the roof.  As “the intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts” and plaintiff was working on the roof of a building, the court held plaintiff was subjected “to the sort of risk” that § 240(1) “was intended to obviate.”  Thus, the court held that § 240(1) applies to tree removal work when undertaken during the repair of a structure.

PRACTICE POINT:  Ok, this case will point out that some of the things we know for sure do not always apply.  For long time readers you will recall that if a plaintiff is injured while cutting down or trimming a tree the activity is not one intended to be covered by the labor law.  The distinction in this case is that the plaintiff was working on the roof doing a repair on the house which necessitated cutting the part of the tree which had fallen on the roof.  Always look at the entirety of the situation and not just the specific localized task to determine if the case is a labor law case or not.

Labor Law § 241(6) (JAE)

As to the Labor Law § 241(6) claim, the court noted that since the plaintiff was engaged in activities ancillary to the repair of the building from which he fell, the provision was applicable to the facts of the case.

 

Bennett v Hucke
September 16, 2015
Appellate Division, Second Department
                                        
Plaintiff’s injuries allegedly were caused by defects in both the premises and the equipment used at the worksite.  The trial court granted defendants Alan Kirk and Alan H. Kirk, Inc.s’ motion for summary judgment dismiss the complaint alleging violations of Labor Law §§ 240(1) and 241(6), and denied plaintiff’s motion for reargument.

Labor Law § 240(1) (DRA)

The Second Department restated the rule that a construction manager is generally not considered a “contractor” or “owner” within the meaning of Labor Law §§ 240(1) and 241(6) but may become responsible for the safety of the workers at a construction site as an agent of the owner or general contractor if it has been delegated the authority to supervise and control the work.  “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured.” 

Here, the court held defendants submitted evidence that neither Alan Kirk nor Alan H. Kirk, Inc. were a general contractor or an agent of an owner or general contractor with the authority to supervise and control plaintiff’s work.  Accordingly, defendants were entitled to summary judgment dismissing the §§ 240(1) and 241(6) claims against them.

PRACTICE POINT:  This case gives a great overview of the parties that can be considered labor law defendants.  Owners we understand and contractors in the direct stream with the plaintiff’s employer seem to be logical.  The fact that a prime contractor who had no responsibility for the work the plaintiff was doing when injured is not a valid defendant seems logical.  That a construction manager, who does not have the authority to supervise, direct or control the work of the plaintiff is likewise not a valid defendant seems logical also.  That is the definition of who is an appropriate defendant.

 

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

To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiff's work. Where a plaintiff's injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.

Here, the Kirk defendants established, prima facie, both that they did not create or have actual or constructive notice of the condition which allegedly caused the injury to the injured plaintiff, and that they did not have the authority to supervise or control the means and methods of his work, and plaintiff failed to raise a triable issue of fact.

 

Biscup v E.W. Howell, Co., Inc.
September 16, 2015
Appellate Division, Second Department
                                        
Biscup’s incident occurred when he jumped from the back of a flatbed truck and slipped in mud.  The trial court denied defendants and third-party defendants motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6), and denied third-party plaintiffs’ motion for summary judgment on his third-party claim for contractual indemnification against Super Steel.  The trial court also granted Super Steel’s motion to dismiss the third-party claim.

Labor Law § 240(1) (DRA)

The Second Department, relying on Toefer v Long is. R.R., held that the § 240(1) claim should have been dismissed because “a four-to-five foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240(1) coverage.”

PRACTICE POINT:  Plaintiff’s injured jumping from; falling from or generally injured upon the back of a tractor trailer are not generally proper plaintiffs under the labor law.  The courts have held that the back of a trailer is not the type of elevated work site the statute is designed to protect workers from.

 

Labor Law § 241(6) (JAE)
With regard to the alleged violation of Labor Law § 241(6), on appeal, the plaintiff conceded that the Industrial Code provision upon which he relied was inapplicable, and that he failed to raise a triable issue of fact in opposition to the motions.

 

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

The Second Department affirmed that the Supreme Court properly denied that branch of Howell’s motion for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action, which were based on allegations of a dangerous work site.  Howell failed to establish the absence of triable issues of fact as to whether it had control over the work site or constructive or actual notice of a dangerous condition. 

 

Indemnity Issues in Labor Law (SEP)

Where there is a question of fact on Howell’s negligence, it follows their claims for contractual indemnity failed as well.  If we’ve said it once, we’ve said it a thousand times…the owner’s negligence is fulcrum upon which all risk transfer teeters.   Without a dismissal of Labor Law § 200/Common Negligence, you have no chance of clean risk transfer.

On the flip side, arguments to dismiss Howell’s indemnity claims also failed due to the outstanding question related to Howell’s negligence.

 

 

Garcia v Pond Acquisition Corp.
September 16, 2015
Appellate Division, Second Department
                                        
Garcia allegedly was injured when he fell from a defective scaffold while painting the theater at a home owned by defendant.  The trial court granted defendant’s motion for summary judgment dismissing the complaint based on the homeowners’ exemption as the home was a one-family dwelling and defendant did not direct or control Garcia’s work.

Labor Law § 240(1) (DRA)

The Second Department affirmed as defendant submitted evidence showing that the home was used solely as a residence and not to operate a business or generate income, and defendant did not direct or control the work being performed.  Thus, defendant was entitled to the protections of the homeowners’ exemption.

PRACTICE POINT:  This is an easy decision for the court, there is no argument that the property was not a one or two family dwelling, that it was used for non-commercial purposes and that the property owner did not supervise, direct or control the plaintiff’s work.

 

 

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

 

12 NYCRR § 23-1.7(d) – Protection from general hazards – Slipping hazards.

 

§ 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition”, and is sufficiently specific.

Landahl v City of Buffalo, 103 AD3d 1129, 959 NYS2d 306 (4th Dept 2013);

Velasquez v 795 Columbus LLC, 103 AD3d 541, 959 NYS2d 491 (1st Dept 2013);

Passantino v Made Realty Corp., 121 AD3d 957, 996 NYS2d 53 (2d Dept 2014);

Ocampo v Bovis Lend Lease LMB, Inc., 123 AD3d 456, 998 NYS2d 340 (1st Dept 2014);

Griffiths v FC-Canal, LLC, 120 AD3d 1100, 992 NYS2d 518 (1st Dept 2014);

Reynoso v Bovis Lend Lease LMB, Inc., 125 AD3d 740, 4 NYS3d 55 (2d Dept 2015);

Barros v Bette & Cring, LLC, 129 AD3d 1279, 10 NYS3d 742 (3d Dept 2015);

Landahl held reg 1.7(d) inapplicable where π injured when his foot slid from a worn marble step on stairway.
Velasquez held π entitled to summary judgment under reg where he slipped & fell on mud, rocks & water b/c mud covering open excavation site following water main break & rain constituted “foreign substance” that caused slippery footing, & π testified his foreman told him to work despite presence of a muddy & wet condition.
Passantino held reg inapplicable to π injured when he slipped on sand & gravel in courtyard area while working as part of 3 man crew installing fiber optic cable b/c π did not tip & not injured in area constituting floor, passageway, walkway, scaffold, platform or elevated work surface.
Ocampo held ∆ not entitled to summary judgment where π slipped & fell on ice, which had not been removed, sanded or covered despite testimony that π’s work required use of solution of water & chemical intended to reduce its freezing point.
Griffiths held reg inapplicable to π’s slip & fall on ice b/c it was the very condition he had been charge with removing.
Reynoso held π entitled to summary judgment where he slipped & fell as result of snow & ice at location where he performed his work & he was following employer’s directives, using equipment provided & wearing proper shoes as required by his employer.
Barros held liability does not attach under reg where π slipped & fell while shoveling snow as ordered by his supervisor b/c his injury caused by the very condition π was charged with removing.

\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
Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team

            David R. Adams, Team Leader                                            Steven E. Peiper
[email protected]                                                            [email protected]

            Dan D. Kohane                                                                       Cassandra A. Kazukenus
[email protected]                                                            [email protected]

            Michael F. Perley                                                                  Jennifer A. Ehman
[email protected]                                                           [email protected]

            V. Christopher Potenza                                                        Marc A. Schulz
[email protected]                                                            [email protected]

 

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424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

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