Labor Law Pointers

Volume I, No. 10
Wednesday, August 1, 2012

A Monthly Electronic Newsletter Addressing
New York State Labor Law
 Decisions and Trends

 

From the Editor:

Well the summer slowdown seems to have overtaken the courts, the Court of Appeals did not release any decisions this month at all and we have only a few from the departments. 

Of note this month is the decision in Oakes v Wal-Mart Real Estate Bus. Trust from the Third Department.  Here the plaintiff is caught between structural steel roof trusses and has his leg crushed when a tow motor hits a steel roof truss where it was being stored on the ground waiting hoisting and placement which caused it to tip over pinning him to the truss set next to it.  The trusses had been set on the ground, in order, and next to one and other in close proximity to each other ready to be installed.  The court’s unanimous ruling is very interesting when compared to Runner, Wilinski and Salazar, all of which are discussed in the opinion.  I recommend that you read the original Oakes decision as the court explains its reasoning, explaining how they differentiate the instant case from the above mentioned Court of Appeals cases.  They find that the Court of Appeals did not decide that a height differential could never be de minimus in a gravity related accident (Runner and Wilinski) discussing that the pipe in Wilinski fell four feet before hitting the plaintiff.  Rather the third found that in the instant case the truss and the plaintiff were at the same level and that there was no elevation differential and that the danger to the plaintiff was the ordinary type of danger experienced by workers on a construction site and not the extraordinary dangers associated with an elevation risk as envisioned by 240(1).   I have added the hyperlink here for your convenience. 
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05694.htm

There are a few other cases reported but none as interesting.  Slow month.  Jennifer Ehman will be back next month to report on the 241(6) cases. She and baby Ella are doing great.  Remember as always that we are available to answer any Labor Law questions you may have at any time, feel free to call on my cell if I am not in the office.

Please feel free to distribute this to any and all you think will enjoy it or at least get something useful out of it.  Anyone wishing to be put on the distribution list, just send me an email and I will make sure you get our newsletter the first Wednesday of each and every month.

No jokes or pictures worth publishing were submitted this month so nothing but boring law to keep your interest.

I have attached a copy of the newsletter as an attachment in case anyone wants to print it.

Have a great August and you will hear from me again September 5.

David

David R. Adams
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  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) 849-8900.

 

Labor Law Section 240(1)
by: David R. Adams
(716) 849-8916
[email protected]

 

07/17/12          Burton v CW Equities, LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05596.htm

Plaintiff fell approximately 15 feet from a concrete walkway during a construction project. The walkway provided access to the rear yard of the building under construction and had no guard rails or barriers. The First Department unanimously modified the trial court’s decision to deny plaintiff’s motion for summary judgment, granting that motion. The First Department reasoned that just because the walkway was a “permanent structure” does not remove it from the coverage of Labor Law §240(1) and that the “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” 

PRACTICE POINT:  Do not be distracted in your analysis of a labor law case by the distinction between a scaffold or ladder and a permanent structure.  As you can see in this case the permanent structure, here a concrete walkway required the same protections against a gravity related risk as a scaffold would have in the same situation.  It is the elevation related risk which governs, not the status of the method, temporary or permanent.

 

7/18/12            Tomecek v Westchester Additions & Renovations, Inc.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05624.htm

            Plaintiff brought suit to recover damages for violations of Labor Law §§ 200,240, and § 241 when he was required to set up a ladder on uneven ground and eventually fell, sustaining injuries. The Second Department reversed the Supreme Court decision to deny the defendant’s motion for summary judgment dismissing the plaintiff’s claim. The Second Department reasoned that an exception to Labor Law §§240 and 241 provides that liability can only be imposed on owners of single and two-family houses  where the homeowner directs or controls the work. The defendant here demonstrated his entitlement to this exception by offering proof that he did not supervise, direct, or control the work being performed at his single-family home. The plaintiff failed to raise a triable issue of fact to this issue.

PRACTICE POINT:  The single family exemption once again raises it valuable head.  If you have a case with a home owner make sure that you explore the issue of direction and control to see if the defendant may have some liability or not. The term "direction and control of the work being performed" is strictly construed to mean that the homeowner oversees the method and manner of the work being performed.  I assume the other defendant, Westchester, was on the hook for the 240(1) claim.

 

07/19/2012      Oakes v Wal-Mart Real Estate Bus. Trust
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05694.htm

            Plaintiffs, an iron worker and supervisor on a construction site and his wife, brought suit against Wal- Mart, its contractors, and subcontractors to recover damages when his legs were crushed between two trusses. An unfortunate forklift accident caused a standing truss to become unstable, tip over and pin him against another truss. Plaintiffs asserted claims under Labor Law §§ 200, 240(1) and §241(6) against the defendants and moved for summary judgment on the Labor Law §240(1) and §241(6) claims. The Third Department affirmed the Supreme Court decision to dismiss the plaintiffs’ claims under §240(1) in their entirety. The Third Department reasoned that because the truss was on the ground and fell over onto the plaintiff, the plaintiff was “exposed to “the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law §240(1).”
The Third Department finds that the Court of Appeals did not decide that a height differential could never be de minimus in a gravity related accident (Runner and Wilinski), discussing that the pipe in Wilinski fell four feet before hitting the plaintiff.  Rather the Third found that in the instant case the truss and the plaintiff were at the same level and that there was no elevation differential and that the danger to the plaintiff was the ordinary type of danger experienced by workers on a construction site and not the extraordinary dangers associated with an elevation risk as envisioned by 240(1).   This seems to mean that as the bottom of the truss and the plaintiff’s feet were at the same height, and the top of the truss was not above the plaintiff that there was no height differential.
This may not be the end of the story.  While the plaintiff does not have the two dissents needed to have an appeal as or right to the Court of Appeals given the three decisions they have made in the past year or so on this same or similar issue it would not be surprising if they took a look at this one if and when requested by the plaintiff.

PRACTICE POINT:  I read this case at least ten times and am still having trouble with the distinctions.  The one thing I take away from this case is that no matter what you think the law is, get all the available information and experts to help you make the motion.  What is a de minimis height differential, what is an ordinary hazard?  The answers we think we know are not always set in stone.  While the law seems to be refined with some regularity keeping abreast of the most recent cases is a must. 

 

07/31/12          Picaro v New York Convention Ctr. Dev. Corp.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05789.htm

Plaintiff, a house electrician, was engaged in routine work when he fell from a ladder affixed to a scissor lift after fixing a light fixture. The Supreme Court denied the defendant’s Motion to Dismiss the plaintiff’s Labor Law §240(1) claim and denied the plaintiff’s Motion for partial Summary Judgment on the issue of liability on that claim. Plaintiff testified, and his sub-foreman confirmed in an affidavit, that the high-voltage nature of the lights causes the sockets to deteriorate, requiring the light fixtures to be fixed on a regular basis, about twice weekly. Therefore, the First Department modified the lower court decision and granted the defendant’s motion, dismissing the plaintiff’s Labor Law §240(1) claim, concluding that the “plaintiff’s work clearly involved replacing components that require replacement in the course of normal wear and tear.”

PRACTICE POINT:  Another case pitting the forces of repair against the forces of maintenance.  Repair is 240(1) and maintenance is not.  Remember also that if it is a 241(6) case that it must be construction, demolition or excavation.  Normal wear and tear and routine replacement equal maintenance.  Check records whenever possible to establish a pattern of replacement which may denote maintenance. 

 

                                               

 

                                               

 

 

 

Labor Law Section 241(6)

by: David R. Adams
(716) 849-8916
[email protected]

 

07/17/12          Burton v CW Equities, LLC
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05596.htm

Plaintiff commenced this action to recover for injuries sustained when he fell approximately 15 feet from a concrete walkway. The walkway provided access to the rear yard of the building under construction and had no guard rails or barriers. The First Department determined that even though the plaintiff failed to allege a violation of Industrial Code (12 NYCRR) §23-1.7(b)(1) as a predicate for his Labor Law §241(6) claim, he identified it in opposition to the defendant’s motion and defendant claimed no prejudice for the late invocation of the provision.

PRACTICE POINT:  Another case where the plaintiff is allowed to plead the regulation in opposition to the motion for Summary Judgment.

 

7/18/12            Tomecek v Westchester Additions & Renovations, Inc.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05624.htm

            Plaintiff brought suit to recover damages for violations of Labor Law §§ 200,240, and § 241 when he was required to set up a ladder on uneven ground and eventually fell, sustaining injuries. The Second Department reversed the Supreme Court decision to deny the defendant’s motion for summary judgment dismissing the plaintiff’s claim. The Second Department reasoned that an exception to Labor Law §§240 and 241 provides that liability can only be imposed on owners of single and two-family houses  where the homeowner directs or controls the work. The defendant here demonstrated his entitlement to this exception by offering proof that he did not supervise, direct, or control the work being performed at his single-family home. The plaintiff failed to raise a triable issue of fact to this issue.

PRACTICE POINT:  The single family exemption once again raises it valuable head.  If you have a case with a home owner make sure that you explore the issue of direction and control to see if the defendant may have some liability or not. The term "direction and control of the work being performed" is strictly construed to mean that the homeowner oversees the method and manner of the work being performed.  I assume the other defendant, Westchester was on the hook for the 240(1) claim.

 

                                                                                    by:    David R. Adams
(716) 849-8916
[email protected]

 

 

 

Labor Law Section 200 and Common Law Negligence

by: V. Christopher Potenza
(716) 849-8933
[email protected]

It’s summertime, and the living is easy.  While the pace of decisions slowed to a crawl this month, the few reported decisions on Labor Law 200 are quite substantive and provide a nice outline of the legal standards and the pitfalls defendants can face in litigating these claims. 
As a brief recap, Labor Law § 200 codifies the obligation of owners and contractors to provide workers with a safe place to work.  There is a two-prong analysis to establish a claim for negligence/Labor Law § 200 as a plaintiff must:  (1) establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or (2) establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition. 
7/19/2012        Oakes v. Wal-Mart Real Estate Business Trust,
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05694.htm

Plaintiff’s legs were crushed in an accident on the premises of a construction site owned by defendant Wal–Mart Real Estate Business Trust in the Town of Massena, New York. Plaintiff, an iron worker, was employed as a supervisor by the third-party defendant, a subcontractor retained by the general contractor. Defendant Luck Builders, Inc. was the subcontractor hired to perform site preparation work, which included leveling, grading and filling.
As a supervisor, plaintiff was responsible for inspecting pieces of structural steel and was walking between two steel trusses—approximately 30 feet long by 5 1/2 feet high by 1 foot wide.  A forklift operated by another employee of plaintiff’s employer allegedly drove over a “soft spot” in the ground, causing its right tire to sink six to eight inches and as a result, the unsecured bar joist that the forklift was carrying shifted sideways approximately two feet and struck one of the vertically positioned trusses, which fell over onto plaintiff and pinned him between two trusses.
The Third Department ruled that the Supreme Court correctly denied defendants' motion for summary judgment dismissing plaintiffs' Labor Law § 200 and common-law negligence causes of action. Under section 200 and at common law, no liability attaches to an owner or general contractor if the defect or dangerous condition arose from the manner or method in which a subcontractor performed its work and the owner or general contractor had no supervisory control over the activity that caused the injury. In contrast, when a plaintiff's claim arises due to a defect or dangerous condition at the work site, the plaintiff must show that the defendants had actual or constructive notice of the condition that caused the accident and control over the place where the injury occurred.  
Here, plaintiffs alleged both that defendants failed to remedy a hazardous condition existing at the work site—the uneven ground, unstable soil and holes—and that the work was performed in a dangerous manner due to the failure to secure the bar joist on the forklift and the truss on the ground, and Luck's failure to properly prepare the site. While it is undisputed that defendants had no authority to supervise or direct the manner in which the work was performed, issues of fact exist regarding the cause or causes of the accident, and whether defendants had actual or constructive notice of the hazardous condition at the site.  Finally, while plaintiffs' Labor Law § 200 claim was properly dismissed as against Luck because it had no authority or control over plaintiff's work, questions of fact exist as to common-law negligence—specifically, regarding whether Luck created the dangerous condition on the premises.


7/8/2012          Tomecek v. Westchester Additions & Renovations, Inc..,
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05624.htm

The plaintiff was an employee of a subcontractor hired to construct an addition to the residence of the property owner, the defendant Larry Moy. The plaintiff was standing on a ladder placed alongside the foundation of the addition when he fell, sustaining injuries.  Plaintiff alleged that he was required to set up the ladder on uneven ground, thus creating an unsafe workplace, and that he was given dangerous or defective equipment with which to work.
The property owner, Moy, offered proof that he did not create the allegedly uneven area of ground on which the plaintiff placed a ladder, and did not have notice of its existence. He therefore established, prima facie, his entitlement to judgment as a matter of law dismissing the causes of action under Labor Law § 200 and common-law negligence which were based on a dangerous or defective condition of the premises. Moy also offered proof that he had no authority to supervise or control the means and method of the work being performed, and thus established prima facie entitlement to judgment as a matter of law based on a theory that the plaintiff was using dangerous or defective equipment.  In opposition, the plaintiff failed to raise a triable issue of fact and the Third Department reversed the trial court and granted summary judgment to Moy. 

 

7/17/2012      Burton v. CW Equities, LLC,
Appellate Division, First Department
hhttp://www.courts.state.ny.us/reporter/3dseries/2012/2012_05596.htm

Plaintiff fell from a concrete walkway at a construction site.  Since his injury did not arise from the method he used to perform his work, but from a dangerous condition of the workplace, it is not dispositive of his Labor Law § 200 claim that defendant CW Equities did not control the work at the building site.  Whether CW Equities had the requisite notice of the dangerous condition is an issue of fact raised by its principal's testimony that he visited the site approximately every other day.  Similarly, as to plaintiff's common-law negligence claim, the record presents an issue of fact whether the dangerous condition should have been apparent upon visual inspection.  As such, The First Department upheld the denial of summary judgment to defendant CW Equities. 

 

7/31/12            Candela v. New York City School Const. Authority,
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05788.htm

After a jury trial in which the complaint alleging a violation of Labor Law § 200 was dismissed, the First Department vacated the judgment ordered a new trial.  Plaintiff was injured when a 70–pound window sash crashed down on his back while he was leaning through the window to scrape hardened concrete residue from the outside window ledge. Plaintiff was employed by the subcontractor responsible for debris removal in connection with the construction of a school in Manhattan. There was evidence presented that the windows would not stay open and that construction workers frequently propped open the windows with construction debris. 
The Appellate Court focused its review of the jury determination exclusively on the issue of notice.  The Court noted that notice is necessary for a plaintiff to prevail on a Labor Law § 200 claim, and the evidence was uncontradicted that problems with the windows were reported to the general contractor weeks before the accident.  The Court concluded that the jury had no reasonable basis for rejecting the testimony that problems with the windows were reported weeks before the accident and the GC ordered an inspection of the windows to determine the source of the problem. 

 

 

Indemnity Issues in Labor Law

by: Steven E. Peiper
(716) 849-8995
[email protected]

07/25/12          Reyes v Post & Broadway, Inc.
Appellate Division, Second Department
 http://www.nycourts.gov/reporter/3dseries/2012/2012_05733.htm

Plaintiff was injured after he fell from a scaffold while in the course of his employment TNT.  As a result of injuries he sustained, plaintiff commenced a Labor Law § 240(1) claim against Post & Broadway (as owner) OK Management (as construction manager).  Upon being named as defendants, Post & Broadway and OK Management commenced a third-party action seeking contractual indemnification from TNT. 
TNT opposed the contractual indemnity request, and as a result Post and OK proceed to trial in the main-party action.  After a non-jury trial, plaintiff was awarded $3.4 million.  Immediately thereafter, Post and OK again requested contractual indemnification from TNT. 
The dispute revolved around the fact that the principal from OK and the principal from TNT had apparently agreed that TNT would assume all liabilities which arose from TNT’s work at the jobsite.  To that end, the phrase “contractor [TNT] assumes all liabilities” was written on the back of the purchase order executed between the two parties. 
TNT opposed the contractual indemnity claim on the basis that the clause was void as vague and ambiguous.  OK, however, rebutted TNT’s claims be arguing that OK’s principal wrote the above-referenced phrase on the back of a contract provided by TNT only after the indemnity agreement had been acknowledged by TNT’s principal. 
Because TNT could not rebut OK’s position that the parties agreed that TNT would indemnify and hold harmless OK, the trial court affirmed OK’s motion for summary judgment.  The fact that TNT could not offer any proof to dispute the sworn testimony from OK that there had been a meeting of the minds prior to the loss appeared to be the deciding factor. 
In affirming the trial court’s ruling, the Second Department initially noted the legal maxim that indemnity agreements must be strictly construed to avoid reading an obligation that was not intended by the parties at the time of formation.   The Appellate Division noted that the contract broadly provided indemnity protection to OK for all liabilities.  That fact, coupled with the unrebutted testimony from OK’s principal, persuaded the Appellate Division to uphold the indemnity agreement. 
It is noted that the Court also addressed OK’s claims for attorneys’ fees and litigation expenses.  While the Court noted the issue of attorneys’ fees was not addressed in the motions before the trial court, it also noted that there was no merit to OK’s claims for those asserted damages.  This is because, presumably, the “indemnity clause” in question made no reference to costs or fees related to litigation. 

Peiper’s Point - Remember, if you wish to recover attorneys’ fees through a contractual indemnity agreement, the agreement must specifically reference attorneys’ fees as a recoverable item.

 

 

͌

 

 

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

Labor Law Team
David R. Adams, Team Leader
[email protected]
Dan D. Kohane
[email protected]
Michael F. Perley
[email protected]
V. Christopher Potenza
[email protected]
Steven E. Peiper
[email protected]
Cassandra A. Kazukenus
[email protected]
Jennifer A. Ehman
[email protected]


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

 

© 2011-2012 Hurwitz & Fine, P.C., All rights reserved.