Bonczar v American Multi-Cinema, Inc.
April 28, 2022
Court of Appeals
Plaintiff was injured when he fell from a ladder while retrofitting a fire alarm system at defendant’s movie theater. After climbing up and down to the third or fourth step of the ladder several times without issue, he began to descend when the ladder allegedly shifted and wobbled. Plaintiff did not know why the ladder wobbled or shifted and acknowledged he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.
The trial court granted plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1). The Fourth Department reversed the trial court, holding that plaintiff failed to show that he was entitled to judgment as a matter of law (158 AD3d 1114, 1115 [4th Dept 2018]). The Fourth Department found factual issues as to whether a statutory violation had occurred and if plaintiff’s own acts and omissions, particularly as to the ladder’s positioning and plaintiff's failure to check the ladder's locking mechanisms, were the sole proximate cause of his injury
On remand, plaintiff's § 240(1) claim was tried by a jury. At the close of evidence, plaintiff moved for a directed verdict. The trial court reserved judgment and the jury returned a verdict for defendant, finding no violation of the statute and that plaintiff’s failure to position the ladder properly was the sole proximate cause of his injuries. The trial court denied plaintiff’s motion to set aside the verdict as against the weight of the evidence. The Fourth Department unanimously affirmed that judgment in defendant's favor.
Labor Law § 240(1) (EDA)
The critical portion of this decision is that the Court of Appeals upheld the jury’s decision that plaintiff’s own setting up of the ladder and his failure to check the positioning of the ladder was sufficient to uphold the sole proximate cause defense. While only used to uphold the jury’s decision, this will be a key case in summary judgment motions for years to come with the argument that if plaintiff set up the ladder and it later shifted, then that argument should be heard to the jury on the issue of whether the sole proximate cause defense should be applied, or at least argued, to the jury.
The Court of Appeals also rejected plaintiff’s argument to overturn the 2018 Fourth Department’s order on the grounds that it did not “necessarily affect the final judgment”. In effect, because the case had been remanded for trial on the issue of fact, the decision did not resolve the case or resolve that particular issue. The question of whether plaintiff was the sole proximate cause of the fall because of his placement of the ladder was litigated before the jury which then rendered its verdict. The trial court did not disturb the jury’s verdict and the Fourth Department affirmed the trial court’s order.
PRACTICE POINT: (MAS) Watch this case form the basis for many summary judgment motions to come, with the sole proximate cause defense established by plaintiff’s failure to check the ladder or to set up the ladder himself properly. Additionally, the 2018 order could only be reviewed on appeal, pursuant to CPLR § 5501(a), if the nonfinal order “necessarily affects” the final judgment. To determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated”, the Court’s inquiry is whether “reversal would inescapably have led to vacatur of the judgment”. In this case, the nonfinal order did not remove any issues from the case and thus, the 2018 order did not necessarily affect the final judgment because the jury, and not the court, determined that plaintiff’s failure to position the ladder properly was the sole proximate cause of his injuries.
Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium
April 28, 2022
Court of Appeals
Plaintiff was tasked with moving sinks from one area of a bathroom to another. His work required him to cut and reroute pipes in the ceiling that were located near electrical wiring. To reach the pipes, he used an A-frame ladder, except he could only lean it against the wall in the closed and unlocked position due to spatial limitations. He was attempting to connect two pipes while standing on the ladder, when he was knocked off the ladder because his hand touched a live wire, he received an electrical shock, and fell.
Plaintiff does not remember anything about his fall, including whether he lost consciousness, whether the ladder fell to the ground, or whether he was thrown from the ladder after being electrocuted. Plaintiff’s expert opined that had the ladder been supported or secured to the floor or wall by anchoring, it would have remained stable when plaintiff was shocked. Plaintiff’s expert further opined that given the nature of plaintiff’s work, which involved cutting pipes and the use of hand tools at an elevated height, plaintiff should have been furnished with a more stable device, such as a Baker scaffold or man lift. The defense did not submit any expert proof.
The trial court denied plaintiff’s motion for partial summary judgment on liability under Labor Law § 240(1). The First Department reversed the trial court and granted the motion, finding that the “safety device” provided to plaintiff was an unsecured and unsupported A-frame ladder that was inadequate to perform the assigned task. The two-Justice dissent would preclude recovery to plaintiff, based on Nazario v 222 Broadway, LLC, 28 NY3d 1054 (2016), because of the absence of any evidence that the ladder was defective or that other particular safety devices would have prevented the accident.
Labor Law § 240(1) (MAS)
The Court of Appeals reversed the First Department’s order and denied plaintiff’s motion, finding that questions of fact exist as to whether “the ladder failed to provide proper protection,” whether “plaintiff should have been provided with additional safety devices,” and whether the ladder’s purported inadequacy or the absence of additional safety devices was a proximate cause of plaintiff’s accident (see Nacario v 222 Broadway, LLC, 28 NY3d at 1055).
Judge Wilson’s dissent would affirm the First Department’s order and grant plaintiff’s motion because plaintiff was provided an inadequate ladder for his job, and that the inadequate ladder was a proximate cause of his fall-related injuries. According to Judge Wilson’s dissent, the electric shock is a red herring as it does not negate liability for defendant’s alleged failure to furnish the protection required by statute. Thus, even though the electric shock was the precipitating event of plaintiff’s fall, it was not the sole proximate cause.
PRACTICE POINT: We took this exact same position in a Fourth Department case with nearly identical facts in Jones v Nazareth Coll. of Rochester, 147 AD3d 1365 (4th Dept 2017). If you are a subscriber since 2017, then hopefully you recall the Fourth Department’s finding that “there are questions of fact … whether … the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether … plaintiff should have been provided with additional safety devices.” More than five years later, the Court of Appeals confirmed the Fourth Department’s position that where the injured worker falls due an electrical shock from a non-defective ladder that he or she set up and used in the closed and unlocked position, then it is not a slam-dunk 240(1) summary judgment case.
Healy v EST Downtown, LLC
April 28, 2022
Court of Appeals
Plaintiff is a maintenance and repair technician employed by the building’s property manager. The building’s maintenance staff, of which plaintiff was a member, was separate from its janitorial staff. Plaintiff's regular duties included making the building’s rental properties ready for incoming tenants by repairing fixtures and painting. Additionally, he was tasked with responding to work orders generated by his employer in response to defendant's requests for repairs.
On the day of his accident, plaintiff responded to a “[p]est [c]ontrol” work order filed by one of the building’s commercial tenants. Specifically, the work order complained that birds were depositing excrement from a nest that was lodged in one of the building’s gutters located above the tenant’s entryway. Plaintiff was allegedly injured when, while attempting to remove the bird’s nest, he fell from an unsecured eight-foot ladder that moved when a bird suddenly flew out of the nest. The trial court and the Fourth Department both granted plaintiff’s motion for summary judgment on the § 240(1) claim and denied defendant’s summary judgment motion seeking dismissal of that claim.
Labor Law § 240(1) (EDA)
The Court of Appeals reversed the Fourth Department’s order awarding summary judgment to plaintiff, finding that he did not qualify as an appropriate Labor Law plaintiff because he was not performing “cleaning,” one of the enumerated tasks that affords workers protection under the statute. The Court reiterated the four Soto factors used to determine what constitutes “cleaning” under the statue. “an activity cannot be characterized as "cleaning" under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” (see Soto v J. Crew Inc., 21 NY3d 562 ). The Court held that plaintiff’s activity here did not satisfy the first Soto factor and found that plaintiff’s work was “routine” in nature and not a covered activity under the statute.
PRACTICE POINT: The Court of Appeals scrutinized whether plaintiff's activity was “cleaning” or maintenance, much the same as the analysis between routine maintenance and “repair”. Routine maintenance involves replacing components that require replacement in the course of normal wear and tear (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 ). As we always stress in our presentations and webinars (which we enjoy sharing upon request), there is a simple formula we use for every Labor Law case: (Statutory defendant) X (covered project) X (protected worker) X (covered event) = Liability. If any element is missing, then there is no liability under the statute. Here, plaintiff was simply not performing a covered activity under the statute, so there is no § 240(1) liability.