Labor Law Lines
Volume I, No. 1
Wednesday, November 2, 2011
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Welcome to the inaugural edition of Labor Law Lines, a monthly review of the most current and significant New York State Labor Law cases. We are publishing this newsletter to help our clients stay updated on the most recent decisions and trends in Labor Law through a concise analysis of significant cases in this ever evolving area of law. We hope this assists you in making educated decisions when handling Labor Law cases.
We will be reporting once a month, on the first Wednesday of each month, on four distinct areas -- New York State Labor Law Sections 240(1), 241(6) and 200, and indemnity.
Hurwitz & Fine, P.C. has a group of attorneys in the firm dedicated to handling Labor Law cases using a team approach, providing our clients and carriers the optimum defense to claims. With our experience in litigation and insurance coverage, we are able to provide a comprehensive defense not only to the Labor Law claim, but also to the coverage and indemnification issues that commonly accompany the case. It is from this group of distinguished colleagues that I have drawn for help in preparing Labor Law Lines.
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.
In each issue, I will provide a review and analysis of Section 240(1) “gravity related” cases from the prior month. This month, we have the opportunity to start our review with the Court of Appeals decision in Wilinski v. 334 East 92nd Housing Development, 2011 NY Slip Op 7477, in which summary judgment to the defendant was overturned by New York State’s highest court. This ruling significantly broadens the scope of accidents that can qualify as Section 240(1) Labor Law claims. A sharply divided Court found that, although the worker and the object which caused the injury were at the same level, there remained the potential for a 240(1) claim if there was a height differential beyond what the Court described as de minimis. This is a departure from the “same level” rule that was previously thought to eliminate from Labor Law those injuries where the plaintiff and the object causing injury started and ended at the same level. The Court addressed this apparent inconsistency and the majority found none existed. A complete review is found below.
Jennifer Ehman will provide review and analysis of Labor Law Section 241(6) cases. Jennifer will address the applicable regulations, the need for them to be specific and not general, and their applicability to the facts provided. She will also handle the determination of whether the case qualifies as a Labor Law case in the first instance.
V. Christopher Potenza will address the Labor Law Section 200 cases, a codification of common law negligence. Chris will provide analysis of the ongoing issues of Section 200 cases, a topic very important to all of us who have indemnification issues.
Steven Peiper will be responsible for providing the analysis and review of cases which address indemnification, both contractual and common law, and additional insured status stemming from Labor Law cases. Steve’s extensive coverage background makes him uniquely suited for this area of analysis.
In addition to this newsletter, we offer seminars for anyone interested in additional training on any and all aspects of handling New York State Labor Law cases.
Please let me know if there are any other individuals, inside or outside of your organization, who may benefit from receiving Labor Law Lines.
I hope you find something useful and informative in each and every issue. We are always available to discuss any topic personally with anyone interested. Thanks for reading, and please know that any and all feedback is both welcome and appreciated. If you want to print this edition the attachment will print better for you.
It is in this vein that we present you with the first edition of Labor Law Lines.
Labor Law Section 240(1)
by: David R. Adams
10/25/11 Wilinski v. 334 East 92nd Housing Development Fund Corp.
Court of Appeals
The first case for discussion is Wilinski v. 334 East 92nd Housing Development Fund Corp., 2011 NY Slip Op 7477, from October 25, 2011.
This case marks a departure from the cases previously decided as the Court allows the plaintiff to maintain an action under Labor Law Section 240(1) where the falling object which struck the plaintiff was located at the same level as the plaintiff when it fell. Both the plaintiff and the object, in this case a ten foot piece of pipe, remained at that same level following the accident as well. The lower Court (Appellate Division First Department) reversed the trial Court and granted defendant’s motion dismissing the 240(1) cause of action as the falling object and the plaintiff were at the same level.
The Court of Appeals modified that ruling and found that neither party had demonstrated whether, in the ongoing demolition, protective devices could have been used to secure the pipes (as claimed but not supported by the plaintiff) or that no protective devices were warranted (as claimed but not supported by the defendant).
The ramifications of this decision are several. First, where there is a falling object which causes injury to the plaintiff, exactly how far does it need to fall before 240(1) applies? Recall that in this case the base of the pipe that fell was at the same level as the plaintiff’s feet. The Court is now directing that the deciding factor regarding falling objects in a 240(1) case is not the level the object rests upon, but the height differential between the top of the object and the plaintiff. Here, the Court held that a ten-foot pipe which falls on a 5’6” plaintiff is potentially a violation.
To take this a bit further, if the object which is at the same level as the plaintiff falls and scares the plaintiff, who then wrenches his back, is that a 240(1) case? This concept is not as far-fetched as it may seem on the surface. In another case reported last month, the First Department, in Reavely v. Yonkers Raceway Programs, Inc., 2011 NY Slip Op 7366, the Court granted summary judgment on 240(1) to a plaintiff who slipped on waterproofing applied to a foundation. As plaintiff was afraid that he would fall into a ten-foot deep unprotected trench, he cut his hand on a saw he was holding. The Court found that, while plaintiff did not fall, he cut his hand while preventing himself from falling and it was the presence of the uncovered trench, a violation of 240(1), which the Court found to be a proximate cause of the injury. Thus, if a falling pipe can be a violation of 240(1), does it then flow that a plaintiff who wrenches his back while avoiding a falling pipe is entitled to the absolute liability flowing from 240(1)?
Does it matter if the plaintiff is standing or kneeling? To quote Steve Peiper’s comments in our Coverage Pointers newsletter:
“It seems to this reviewer that when a determination of liability under the statute is determined by a tape measure, we have gone (to use Judge Pigott’s words) far afield of the intentions of the statute. Under the Court’s analysis, if the pipe were 5 feet, and plaintiff was 6’5” there would be no Labor Law violation? What if the pipe was 3 feet, and plaintiff was kneeling at the time he was struck? What if the pipe struck plaintiff on the foot instead of the head?”
The Court in Wilinski seems to want to keep it on the specific facts of the case but it will take time for the full effect of this case to be felt.
This case should have no effect on the falling worker line of cases as the law already does not require the plaintiff to actually fall from the area he is working in, it is only necessary that the lack of a safety devise be a proximate cause of his injury.
10/18/11 Grove v. Cornell University
Court of Appeals
Another important case decided by the Court of Appeals this month is Grove v Cornell University, 2011 Slip Op 7258. In Grove, the Court overturned a 3-2 Third Department decision dismissing plaintiff's 240(1) claim. Plaintiff, a glazier, was in an aerial basket installing membranes and flashing on second story windows. The plaintiff was wearing a safety harness and lanyard. The door to the basket was spring loaded and designed to close automatically and latch to remain shut. The door to the basket did not shut automatically but was still able to be shut manually, which the plaintiff did not do. Plaintiff also did not attach his lanyard to the basket. The lower Court held that, had plaintiff either attached his lanyard or closed the door by hand, the provided safety devices would have prevented him from falling. The Third Department thus found that the plaintiff’s negligence was the sole proximate cause of the accident and dismissed the 240(1) cause of action.
The Court of Appeals, taking the case as of right, found that there was a question for the jury as to whether defendants failed to provide an adequate safety device or if plaintiff’s conduct was the sole proximate cause of his injuries. The decision is without a detailed written opinion so it is difficult to determine what specifically the Court based their decision on, but one thing you can be sure of, this case will appear in motion papers until clarified by the Court, cited by both plaintiffs and defendants every time they are looking for a question of fact.
PRACTICE TIP: Have an expert provide an affidavit supporting your position that the safety device was not only provided to the plaintiff but that it was also appropriate.
10/20/11 Landon v. Austin
Appellate Division, Third Department
In the final Section 240(1) case for this month’s edition, the single family exclusion to the Labor Law is discussed by the Third Department in Landon v Austin, 2011 NY Slip Op 7337. In this case, the defendant land owner testified at trial that his plans for the residence were to “fix it up and sell it.” The Court held that, as he was renovating the premises for a commercial purpose, he was not entitled to the exclusion from the Labor Law afforded to single- and two-family dwellings. To qualify for that exclusion the owner must not direct or control the work and must not be having the work done for a commercial purpose. The Court intimated that, had the defendant provided proof that he had intended to live in the house as he “fixed it up,” the outcome may have been different.
PRACTICE TIP: You can never spend too much time preparing your client for a deposition.
Labor Law Section 241(6)
by: Jennifer A. Ehman
10/25/11 Harrison v. State of New York
Appellate Division, Second Department
Plaintiff and his coworkers were moving a portable generator (weighing 150 to 200 pounds) from one bridge pier to another using s tugboat. The generator was then moved to the end of the pier and plaintiff, who was standing on the boat, attempted to steady it from the deck of the boat, approximately 5½ to 6 feet below. However, the generator slipped toward the plaintiff, caught on this tool belt, and pulled him to the deck, injuring his back.
While it was determined that the 5½ to 6 foot elevation difference between the pier and the deck of the boat created a sufficient elevation related risk to trigger Labor Law Section 240(1) liability, the Court dismissed plaintiff’s 241(6) claim. He alleged a violation of 12 NYCRR 23-1.7(f), which requires stairways, ramps or runways be provided as means to access working levels above or below ground except where the nature of the work prevents their installation. In those cases, ladders or other safe means of access shall be provided. The Court held that the regulation was inapplicable as the tugboat the plaintiff was standing in was not a below ground working level requiring a stairway, ramp or runway under the regulation.
10/4/11 Schick v. 200 Blydenburgh, LLC
Appellate Division, Second Department
This decision broadens definition of building “alteration” in the context of a 241(6) claim. While 241(6) only applies to “construction work,” the definition of the term includes alternation. Plaintiff, a field technician for Verizon, was assigned to provide telephone service for a warehouse. As part of the installation, Plaintiff ran wire from a servicing terminal located inside the warehouse up to the ceiling of the building, attaching the wire to existing structural trusses using plastic zip ties. As Plaintiff was attaching the wire to the trusses, approximately 20 feet high, the bottom of his ladder shifted and Plaintiff fell. It was alleged that the ladder shifted due to the presence of sand, dirt or dust.
The Appellate Division reversed the trial Court’s dismissal of plaintiff’s Labor Law Sections 200, 240(1) and 241(6) causes of action. The Court held that the technician’s work constituted a significant physical change and, therefore, fell under the enumerated work of “altering” within the meaning of 240(1) and, likewise, 241(6).
Notably, the Court refused to grant the technician’s cross-motion for summary judgment on 240(1), as it found issues of fact concerning the condition of the floor, the condition of the rubber feet on the ladder and whether the technician’s placement of the ladder was the sole proximate cause of the accident.
TAKE AWAY: The Second Department seems to be taking an even broader view of the term “altering” than did the Court of Appeals in its 2004 decision, Joblon v. Solow. In Joblon, the plaintiff fell from a ladder after chiseling a hole into an adjacent room to bring in extended wiring to install an electric wall clock. The decision was referred to by the Court as a “close call,” but the Court ruled in plaintiff’s favor due to evidence that, in order to install the wire, he needed to both extend the wiring within the utility room and chisel a hole through a concrete wall. In the Court’s view, plaintiff made a physical change to the building. Here, based on the facts provided, it appears that the technician did nothing more than use zip ties to attach a wire to a pre-existing feature of the building and did not so much as drill one hole into the wall.
Labor Law Section 200 and Common Law Negligence
by: V. Christopher Potenza
It is long standing in New York that owners and contractors must provide workers with a safe place to work. In this vein, Labor Law Section 200 simply codifies the obligation owners and contractors have to provide safety to workers.
There is a two-pronged analysis to establish a claim for negligence/Labor Law Section 200, as a plaintiff must:
- establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or
- establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition.
Unlike the decisions addressing liability under Labor Law Section 240(1), in which the Courts are constantly re-construing (or misconstruing) concepts such as “gravity related,” Section 200 jurisprudence is fairly well defined and not subject to as much legal analysis. Most cases are fact dependent with little ability for creative plaintiffs to extend the breadth of the statute.
On the positive side for the defendants, in the past six months we have seen numerous appellate courts hold firm on a narrow construction of the statute. Where a claimant’s Section 200 claim is premised upon alleged dangers in the methods of the work, an owner or general contractor will be held liable only where it had the authority to supervise or control the performance of the work. However, the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Section 200 or for common-law negligence. See, Harrison v. State of New York, 2011 NY Slip Op 7606 (2nd Dep’t, October 25, 2011); Robinson v. County of Nassau, 84 A.D.3d 919 (2nd Dep’t 2011); Foley v. Consolidated Edison Co. of N.Y., Inc., 84 A.D.3d 476 (1st Dep’t 2011).
Other decisions of note in the past few months include:
Guryev v. Tomchinsky, 87 A.D.3d 612 (2nd Dep’t 2011), in which the Second Department held that condominium defendants were not subject to Labor Law Section 200 liability as they were not entities which had an interest in the property and who fulfilled the role of owner by contracting to have work performed for their benefit.
Henriquez v. New 520 GSH LLC, 2011 NY Slip Op 7578 (1st Dep’t, October 27, 2011), a case involving an elevator maintenance mechanic injured in the elevator car on which he working, the First Department dismissed the Labor Law Section 200 claim because no responsibility rests upon an owner of real property to one hurt through a dangerous condition which he has undertaken to fix.
Indemnity Issues in Labor Law
by: Steven E. Peiper
Welcome, and thanks for reading. As many of you may know, I have been involved in the production of similar insurance coverage newsletters for past several years. While it is often a laborious task, we are genuinely grateful that our efforts have become so appreciated within the field. In this spirit, I was glad to offer my thoughts on indemnity/contribution and third-party practice for our latest effort focusing on defending Labor Law cases.
Despite the efforts of my more eloquent colleagues above, I would submit to you that part of any Labor Law defense ought to be a strategy in shifting exposure to another party. Preferably, another party with coverage sufficient to absorb what is all too likely to become a large loss.
Our efforts in this portion of the newsletter will be to monitor third-party practice for useful decisions which the savvy practitioner/claims professionals can add to his or her toolbox when defending a high exposure premises/labor law case. We will also offer our thoughts and recommendations as to how a particular decision or set of facts can be adopted into your everyday practice.
Again, thanks for reading. We hope that you enjoy receiving this newsletter as much as we enjoy bringing it to you. As always, if you have any questions or would like to offer your own thoughts and opinions, please do not hesitate to drop us a line or give us a phone call. We’d be happy to discuss our write-ups with you!
11/01/11 Leone v BJ’s Wholesale Club, Inc.
Appellate Division, First Department
Plaintiff sustained injury when she slipped and fell on what had leaked from a refrigerated merchandise case at a BJ’s Wholesale Club. As a result, the instant action was commenced against both BJ’s (on a negligence theory) and against Killon Industries on the basis that the unit in question was improperly designed.
Killon moved for summary judgment, therein demonstrating that there was no design defect, nor was its failure to warn BJ’s of potential leaks a proximate cause of the injury. Where, as here, there was no negligence on behalf of Killon, it followed that co-defendant BJ’s cross-claims for common law indemnification likewise failed.
Peiper’s Point – This, again, reminds us of the Court of Appeal’s recent pronouncement in McCarthy v Turner Construction, Inc. that there must be some “active” involvement with a loss before common law indemnity principles can be triggered. Recall, in McCarthy, the plaintiff sustained injury from a fall while in the course of performing his job duties for his employer Samuel Datacom, Inc. (“Samuel”). Samuel had been retained by Linear as the electrical subcontractor on the jobsite. Linear had previously been retained to provide electrical services at the jobsite by the General Contractor, Gallin.
As a result of the incident, McCarthy commenced a suit against the owners of the building where the incident occurred, as well as against Gallin (as the general contractor on the project). McCarthy’s claims were based in violations of Labor Law Sections 240(1), 241(6) and 200. The owner commenced a cross-claim against Gallin for common law indemnity on the basis that Gallin, as the general contractor, had overall authority to supervise and direct all work at the premises. Gallin opposed on the basis that, as it did not actually supervise, direct or control the work, it could not be held negligent. Without active negligence, Gallin argued that it would be improper to force Gallin to indemnify the owner under common law principles.
In a unanimous decision, the Court of Appeals agreed. Where Gallin was able to establish that it did not provide “actual supervision and/or direction over the work,” the Court of Appeals noted “Galin was not required to indemnify the property owners for bringing about plaintiff’s injury.” As succinctly stated by the Court in McCarthy, the hard and fast rule for common law indemnification is “[l]iability for indemnification may only be imposed against those parties (i.e., indemnitors) who exercise actual supervision” (emphasis added). As such, the Court went on to explain that “if a party with contractual authority to direct and supervise the work at a jobsite never exercises that authority because it subcontracted its contractual duties to an entity that actually directed and supervised the work, a common law indemnification claim will not lie against that party on the basis of its contractual authority alone” (emphasis supplied).
What does this mean, you ask? It means that common law claims against a general contractor will be extinguished if, and when, the general contractor is able to extract itself from underneath a Labor Law Section 200 claim. When taken a step further, one could (and perhaps should) argue that if actual direction and control is necessary to establish common law indemnification, it follows that “actual direction and control” is also required to establish common law/Labor Law Section 200 liability. Indeed, several courts have already employed this construction. Please see Morris v. City of New York, [1st Dept., 9/22/11], as a recent example.
10/27/11 McGlinchey v Vassar College
Appellate Division, First Department
McGlinchey commenced the instant action after being injured in the course of his employment with Kirchhoff Construction Management. Plaintiff filed suit against Vassar College, presumably as the owner of the project where he was working at the time of the incident. Vassar responded by filing a third-party action against Kirchhoff alleging both common-law and contractual indemnity. Vassar then moved for summary judgment against Kirchoff on both theories.
Kirchhoff opposed the motion and was successful in defeating Vassar’s common law indemnity claim. Because Vassar had not proven the injury to be “grave” under Workers’ Comp. Law Section 11, the action against Kirchhoff was barred. However, because Vassar had no common law liability (read Labor Law Section 200 liability) to plaintiff, its claim for contractual indemnity was entitled to be upheld. This is because the Court of Appeals has long held that General Obligations Law 5-322.1 does not void an otherwise invalid contractual indemnity provision where the proposed indemnittee is free from negligence (see, e.g., the Judlau Contracting case).
PEIPER’S POINT – May we humbly suggest that sometimes two in the bush is worth more than a bird in the hand! So often, litigation decisions are made without actually looking at the bigger picture. We would suggest, “Be Careful What Ye Wish For.”
Let us take a moment to think about what was happening here, the motion’s intended purpose and what its actual result was. By asserting common law and contractual indemnity claims against Kirchhoff, Vassar triggered Kichhoff’s coverage under both its CGL (covering contractual indemnity provisions) and its Workers’ Comp. Employer’s Liability Coverage (1(b) covering the common law indemnity claim). This means that so long as both claims were pending, Kirchhoff was being defended by both the CGL and Workers’ Compensation Policy. It also meant that if liability was established, Kirchhoff would be entitled to co-primary coverage under both policies. When the CGL was exhausted, the 1(b) would then have applied to provide unlimited coverage.
By moving, and subsequently losing on the common law indemnity claim, Vassar destroyed (or weakened) its argument for protection under Kirchhoff’s 1(b). While Vassar won and got the security it likely desired, the contractual indemnity claim, it ended up with less coverage. Think of it this way -- with both actions pending the possibility, if not likelihood, of contribution from the 1(b) was very much a possibility. With the decision as it is, Vassar limited its potential recovery from Kirchhoff to the limit of the CGL (plus Kirchhoff’s assets, if any). By opposing the common law indemnity claim (as counsel had to do, lest they roll over on a valid defense), Kirchhoff ends up with a limited amount of coverage (i.e., the CGL only), loses its unlimited coverage, and now faces personal exposure.
Perhaps Kirchhoff had ample coverage under its CGL and Umbrella (if one existed) so that it is still not facing personal exposure, and Vassar knew this at the time of the motion. Perhaps the Workers’ Compensation Carrier was not involved. This is in no way a criticism of the decisions of the case. Indeed, there are several factors which I am sure were weighed by counsel on both sides of this case which would impact the litigation strategy. Rather, we only remind everyone else to pay close, close, attention to all possible outcomes before setting into motion a course of events which ultimately may result in unintended consequences.
10/27/11 Perales v First Columbia 1200 Nsr, LLC
Appellate Division, Third Department
Plaintiff slipped and fell in the parking lot of premises owned and operated by defendant First Columbia and the instant lawsuit against First Columbia and co-defendant Gallivan Corporation (the snow plow contractor) resulted. Upon answering, First Columbia asserted cross-claims for contractual and common law indemnification against Gallivan.
At some point in the litigation, Gallivan moved to dismiss First Columbia’s cross-claims. Gallivan argued, first, that it only owed contractual indemnification to the extent the incident was “caused by or sustained in connection with the performance of this Service Agreement or conditions created thereby.” In support of its motion, Gallivan argued that it had performed all required duties under the contract, including the removal of snow as required by a timeframe established in the contract and placing the snow piles in the areas designated by the contract. Where the contract was not breached, and First Columbia could not establish that the incident occurred due to Gallivan’s failure to adhere to its duties under the contract, the contractual indemnity claim was dismissed.
Further, First Columbia’s common law indemnity claim was dismissed. The claims against First Columbia were that (a) it failed to properly configure the parking lot and walkways, and (b) that the snow piles were negligently created. Where, as here, Gallivan had no role in configuring the property and where, as here, Gallivan placed the snow piles exactly where it was directed under the contract, Gallivan had no negligence in this case. As such, the only liability facing First Columbia was its own active negligence. As a party cannot be indemnified under common principles for its own negligence, the cross-claim was dismissed.
PEIPER’S POINT – Read the Contract, Read the Contract, Read the Contract!!! Indemnity provisions are strictly construed. If the facts of the situation do not fit neatly into the terms of the indemnity clause, DO NOT assume that an award is a foregone conclusion!
Read the Complaint, Read the Complaint, Read the Complaint!!! If you’re looking at a Labor Law 200/Common Law Negligence claim, pay attention to what is actually being alleged. If, as here, the only negligence being alleged is actual conduct of the defendant seeking indemnity, no such claim exists.
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Labor Law Lines
David R. Adams
V. Christopher Potenza
Steven E. Peiper
Labor Law Team
David R. Adams, Team Leader
Dan D. Kohane
Michael F. Perley
V. Christopher Potenza
Steven E. Peiper
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