Labor Law Pointers

Volume I, No. 11
Wednesday, September 5, 2012

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

 

From the Editor:

We have not yet escaped from the summer pace of new decisions and we have again a sparse edition for this month.  My kids like a short book for their summer reading list, to tell the truth coming off the long Labor Day weekend I do not mind a short month either. 
I am on the road this month providing training to subscribers.  Anyone interested in training on regarding the labor law, risk transfer or coverage issues in labor law cases please feel free to contact us at any time.
This month’s cases include some interesting issues.  It has been held in the second department (as well as the fourth) that it is not necessary to fall from a height to establish a 240(1) claim.  All that is needed is the risk of a fall and an injury caused by preventing yourself from falling. 
The second departments position on a plaintiff falling while walking from one position to another appears dependent on whether or not the area where he fell was a part of the construction project and the first department finds that a fall of 12 inches is not sufficient to establish liability under 240(1).
As always, feel free to contact us with any labor law questions you may have, we are always available to answer any questions you may have.  We are also available to offer training to any level you may want or require at your convenience.  Several of our subscribers have found this to be helpful.
Hope you enjoy this edition, the next month will, if history is any predictor, provide us with a much larger sampling of cases and hopefully some interesting decisions.  
Hope everyone had a great summer, fall and beyond will be here before we know it so appreciate what looks to be a fabulous weekend and enjoy the last few days of summer. 
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]

8/1/12              Lopez-Dones v. 601 West Associates LLC
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05803.htm

Plaintiff, an apprentice electrician was allegedly injured performing certain electrical work on a “pull box” hanging from a ceiling.  As she was on an A-frame ladder over the pull box, an unidentified man pushed a loaded dolly past plaintiff, causing the ladder to come into contact with the ladder.  The impact caused the ladder to trip, which came into contact with a nearby air conditioning duct.  Plaintiff lost her footing, “immediately” reacted to the impact by grabbing onto a metal rod extending from the ceiling.  She had to “twist” her body to reach the rod, hook her leg into the ladder, get it back upright and regain her footing on the ladder.  Plaintiff did not fall from the ladder.  Plaintiff brought action alleging among other things violations of 240(1).
The Second Department reversed the Supreme Court’s order denying plaintiff’s motion for summary judgment on issue of liability against 601 West Assoc., Tommy Hilfiger, and B.R. Fries.  The Appellate Court held plaintiff prima facie established 240(1) violation and that violation was proximate cause of injury because 240(1) may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall from a ladder.  Moreover, defendants offered no evidence contradicting plaintiff’s account of the events surrounding the accident. 

PRACTICE POINT:  This case reinforces the fact that you do not need to actually fall to have a valid labor law claim.  This is not necessarily the opinion of all departments, but the second and fourth departments have recent cases finding that if the plaintiff is injured in preventing himself from falling from a height that 240(1) does apply.  It would not surprise me if this case or a similar set of circumstances makes its way to the Court of Appeals in the future.

8/1/12              Koat v. Consolidated Edison of New York Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05802.htm

Plaintiff was allegedly injured when he fell while welding a portion of a turbine engine on a barge stationed in waters off the Gowanus Bay.  The barge was part of a floating power generating station owned and operated by defendant U.S. Power and Austoria Generating Companies, as well as the Reliant defendants.  Following his accident, plaintiff commenced action asserting violations of 240(1).  Defendants jointly moved filed summary judgment motion arguing that plaintiff’s 240(1) claim was preempted by Longshore and Harbor Worker’s Compensation Act.  Supreme Court granted their motion. 
On appeal, the Second Department affirmed, citing to Lee v. Astoria Generating Co., L.P. in which the Court of Appeals held a barge containing electricity-generating turbines stationed in the Gowanus Canal was a “vessel” within the meaning of LHWCA and that this federal act preempts state law strict liability claims, such as those provided in 240(1) against the owners and operators of a vessel.  Thus, in this case, defendants made a prima facie showing that they were owners and operators of the same type of barge held by the Court of Appeals in Lee to be a “vessel” within the meaning of LHWCA and therefore, plaintiff’s claims were thus preempted by federal law.    
PRACTICE POINT:  While this is a situation few of us will ever encounter, it is illustrate of the need to look at all the facts and to start with the basics, does New York State labor law apply here.  In the past few months there have been a couple of cases where the accident occurred on Native American territory and the court has held that labor law does apply, (see Hill v. Seneca Nation of Indians from the 7/4/12 newsletter).  Just something else for us all to remember when analyzing a labor law case.

8/8/12              Chase v. Amell Const. Corp
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05903.htm

Plaintiff, an ironworker, was injured while constructing a multi-story addition to a public school.  The accident occurred when the floor, which consisted of sheet metal docking, collapsed underneath the injured plaintiff as he was walking on it.  Supreme Court granted plaintiff’s motion for summary judgment on issue of liability on cause of action alleging violation of 240(1) and denied defendants motion.  The decision was affirmed on appeal.

PRACTICE POINT:  When the floor collapses under the plaintiff while it is being constructed in the second department it is a 240(1) case.  Now read Creese below.

8/29/12            Creese v. Long Island Lighting Co.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06058.htm

            Plaintiff was injured in the course of his employment as he exited a building under construction to retrieve work materials outside.  According to plaintiff, the doorway of building through which he exited was 3 to 4 feet higher than the ground below, and a wooden plank had been placed in the doorway and the ground as a means of enter and exit.  Plaintiff fell of the plank as he attempted to walk from the building to the ground. 
Supreme Court granted owner, project manager, and the Keyspan groups’ summary judgment motion dismissing cause of action alleging violations of 240(1).  The court affirmed on appeal because defendants established prima facie that the plank from which plaintiff allegedly fell was being used as a passageway for laborers to enter and exit the building under construction, and was not being used in the performance of the injured plaintiff’s work i.e. it was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work and thus, the accident did not come within the purview of 240(1).
PRACTICE POINT:  Compare this case to the Chase case above.  In Chase the plaintiff fell through a floor apparently being constructed and the second department found that this was a 240(1) case.  Here the plaintiff falls off a ramp leading into the home under construction and the second department finds that it is not a 240(1) case.  The difference appears to be that the floor in the Chase case was a part of the area being constructed and in the instant case the ramp was a means of access and not an actual part of the construction project.  Lots of good arguments can come out of this.

 

8/14/12            Cappabianca v. Skanska USA Building Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05948.htm

Plaintiff’s was cutting bricks using a wet saw on a wooden pallet 4 to 12 inches high.  Plaintiff stood on an adjacent pallet of same height to allow him to operate its foot pedal, arm lever, and cut-off switch.  According to plaintiff the saw malfunctioned, spraying water “all over” the floor.  The water made it slippery and the pallet shifted when he picked up or put down bricks. 
After plaintiff cut a brick he turned to put it on an adjacent pallet and the pallet he stood on shifted, causing him to lose his footing and fall with one foot stuck between the slats of the pallet injuring his knee.  The trial court held plaintiff’s accident could not give rise to liability under Labor Law § 240(1) because he was at most 12 inches above the floor and was not exposed to an elevation-related risk requiring protective safety equipment and the decision was affirmed on appeal by the first department. 

PRACTICE POINT:  In the first department a fall of 12 inches does not qualify for 240(1) liability.  When you are faced with a fall from a limited height, be sure to search for cases from that department which may have established minimum height to establish 240(1) liability.  You may recall the Soltero v. City of New York decision from April where the first department found a 2 foot fall from a wet ledge to be sufficient to establish liability under 240(1).  The 18 inch case will be out next year I assume.

8/21/12            Lopez v. Dagan
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05999.htm

Defendant homeowners owned a 5-story building and hired R & L Construction, Inc. to convert the building to a single family dwelling.  Owners also hired architect and structural engineers to design plans for the renovation.  Plaintiff was removing containers when a section of the plywood floor on which he was standing collapsed, injuring his back, neck, and left knee when he fell approximately eight feet into the basement of the townhouse and a container fell on top of him. 
The trial court granted owner’s motion for summary judgment dismissing plaintiff’s 240(1) claim and engineer’s motion dismissing the complaint.  On appeal, the court held that property owners fell within the homeowner’s exemption of scaffolding law because it was undisputed the sole purpose of the construction work was to convert a multiple dwelling into a one-family dwelling for the owners’ use.   The engineer’s motion was granted finding that as they did not have the authority to supervise, direct or control the work of the plaintiff that they could not be found to be an agent of the owner and thus could not be an appropriate defendant in a labor law case.

PRACTICE POINT:  It is the intention of the owner which controls, not the current status of the structure.  In this case a multiple family dwelling was being converted into a single family home and thus the exemption for a single family homeowner applied.  In past cases we have seen the exemption held not to apply where a single family dwelling is being converted to an income property either by conversion to a multiple family dwelling (three units or more) or to be used for commercial purposes.  Recall that the exception is only available to an owner who does not supervise, direct or control the work of the plaintiff.

 

 

 

Labor Law Section 241(6)

                                                                                    by:    Jennifer A. Ehman
(716) 849-8964
[email protected]

 

08/29/12          Creese v. Long Island Lighting Co.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06058.htm

Plaintiff was exiting a project site by way of a wooden plank that had been placed between the doorway and the ground as a ramp.  He allegedly fell off the plank and was injured. 

This decision arising from plaintiff’s motion for summary judgment on his Labor Law §241(6) claim against the construction manager, and relevant cross-motion.  Ultimately, the court found a question of fact.  In its opinion, triable issues of fact remained as to whether the elevated plank on which the injured plaintiff was walking at the time of the accident was:  (1) in a slippery condition and, if so, whether this condition was the proximate cause of the accident (see 12 NYCRR 23-1.7[d]); (2) whether the plank was of insufficient width or was insufficiently supported and braced, and, if so, whether this condition was the proximate cause of the accident (see 12 NYCRR 23-1.22[b]); and (3) whether the injured plaintiff was provided a safe means of access to the work site and if any failure to do so was a proximate cause of the accident (see 12 NYCRR 23-1.7[f]).

 

08/14/12          Cappabianca v. Skanska USA Bldg. Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_05948.htm

Plaintiff’s work consisted of cutting bricks with a stationary wet saw.  The wet saw and its stand sat on a wooden pallet on a concrete floor.  Plaintiff allegedly sustained injury when the wooden pallet shifted, due to the presence of water on the floor, and his left foot got caught between the pallet slats.  The court reinstated his Labor Law 241(6) claims that were dismissed by the trial court.  It held that Plaintiff had a claim premised on Industrial Code section 23-1.7(d) and 23-9.2(a). 
Section 23-1.7(d) prohibits owners and employers from letting workers use “a floor…scaffold, platform or other elevated surface which is in a slippery condition” and requires that water and other “foreign substance[s]” which may cause slippery footing be removed or covered.  With regard to this section, plaintiff argued that the wet saw was malfunctioning and as a result spraying water all over.  Defendants, in opposition, argued that wet saws always spray water; therefore, the water was an integral part of the work plaintiff was performing and not a foreign substance.  The court found a question of fact as to whether the saw was malfunctioning. Thus, it refused to dismiss his cause of action. 
The other purportedly applicable regulation, Industrial Code Section 23-9.2(a), requires that “any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement.” Again, the court found a question of fact as to whether the saw was defective and whether its defect contributed to the accident.

 

08/08/12          Annicaro v. Corporate Suites, Inc.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05899.htm
Plaintiff was responsible for cleaning up debris generated by a construction project.  On the date of the accident, he was directed to remove debris from an unfinished interior staircase.  While he was clearing the debris, he stepped backwards onto a long thin threated metal rod.  This resulted in plaintiff losing his balance and falling down the staircase.  In his deposition, he described these rods as “garbage.” 
The court upheld the trial court’s dismissal of plaintiff’s 241(6) cause of action.  It noted that although plaintiff alleged certain regulations were violated, and that such violations were proximate causes of his alleged injuries, defendants established that some of those regulations were inapplicable or were complied with.  Further, the defendants also established that any violations of the remaining regulations were not proximate causes of the plaintiff's alleged injuries.

 

 

 

Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
(716) 849-8933
[email protected]
Labor Day has arrived, marking the unofficial end to summer, which I say is quite relief.   Oppressive heat and an unusually busy August, capped by my daughter’s first birthday party make for one tired columnist.  Navigating the mine field of New York State Labor Law is actually easier than hosting a first birthday party.   How many Labor Law violations can you spot in this picture?  She is clearly working hard on that cake at an elevated surface, and I don’t see a rope or harness…

Much like the cake, the Labor Law 200 cases are quite vanilla this month. 
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. 
8/08/2012        Annicaro v. Corporate Suites, Inc., 2012 N.Y. Slip Op. 05899
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05899.htm
Plaintiff was hired by a contractor to clear debris from a construction site in order to make the site safer for the other works.  As plaintiff was sweeping stairs, he stepped on a piece of debris (that he was hired to remove) and fell down the stairs.  The Court discarded his Labor Law 200 claim as “the common-law duty to provide employees with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the employee is to perform.”    

8/14/2012        Cappabianca v. Skanska USA Bldg. Inc.., 2012 N.Y. Slip Op. 05948
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05948.htm
Plaintiff fell off a pallet while cutting bricks with an electric wet saw owned by his employer at the construction site for a New York City school. Plaintiff was supervised by and reported directly to his employer (a masonry contractor). The saw and its stand sat on a wooden pallet on a concrete floor.  After plaintiff had cut a brick, he turned to put it on an adjacent pallet, but the pallet upon which he stood shifted on the slippery floor as he turned, causing him to lose his footing. According to plaintiff, the saw malfunctioned in that its hood area sprayed water “all over,” including onto the floor, instead of directing the water into an attached tray as it was designed to do.
Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work.  Here, all of the contributing causes of the accident directly arose from the manner and means in which plaintiff was performing his work. Plaintiff consistently maintained that his employer, which exclusively supervised him, furnished him with a defective saw which continuously sprayed water onto the floor and made it slippery. He further alleged that his employer directed him to operate the saw while standing on an unsecured pallet. Finally, he alleged that the pallet his employer directed him to use was unsafe because of the gaps on its surface, and that his foot got caught in a gap and caused him to lose his footing.
Where there is an alleged defect or dangerous condition existing on the premises, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it.   The First Department specifically found that the water on the floor should not be classified as a dangerous condition on the premises because the water would not have been present but for the manner and means of plaintiff's injury-producing work (for which the defendants had no supervision or control).
Since none of the defendants controlled the activity that continuously produced the water, namely, the operation of the wet saw, they lacked any ability to correct the unsafe condition and thus were not liable under Labor Law 200 or for common-law negligence

 

8/21/2012      Lopez v. Dagan, 2012 N.Y. Slip Op. 05999
First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05999.htm
Defendant homeowners hired a contractor to convert a multiple dwelling into a single-family home.  Plaintiff alleges he was injured when a temporary floor he was working on collapsed.  The First Department overturned the trial court, and dismissed plaintiff's Labor Law 200 and common-law negligence claims as against the owners.
The owners made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that plaintiff's accident was caused by the means and methods employed by the general contractor, namely, the improper installation of a temporary floor, and that they had no supervisory control over the operation.  Furthermore, to the extent that plaintiff's injuries arose from a dangerous condition on the premises, which under the common-law the owners were duty-bound to guard against, the owners established prima facie entitlement to summary judgment by proffering evidence that they neither created the accident-causing condition.  In response, plaintiff failed to raise a triable issue of fact.  The Court noted that the record was bereft of any evidence that prior to this accident the owners were ever actually aware that the floor was improperly installed or structurally deficient, and nothing in the record indicates that the floor, when viewed and stood upon, appeared or felt compromised

 

8/29/12            Creese v. Long Island Lighting Co., 2012 N.Y. Slip Op. 00658
Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06058.htm
Plaintiff was employed as a carpenter by general contractor and allegedly was injured in the course of his employment as he exited a building, which was under construction, in order to retrieve work materials from outside. According to the plaintiff, the doorway of the building through which he exited was three to four feet higher than the ground below, and a wooden plank had been placed between the doorway and the ground as a ramped means of ingress and egress. The plaintiff alleged that he fell off the plank as he attempted to walk from the building to the ground.
The Second Department ruled that the Supreme Court properly denied summary judgment on Labor Law 200 to the construction manager as the plaintiffs demonstrated the existence of triable issues of fact as to whether the construction manager defendants had supervisory control and authority over the work site, and whether the they had actual or constructive notice of the hazardous condition. Furthermore, the property owner defendants failed to meet their initial burden on their motion, as the evidence upon which they relied was insufficient to demonstrate, prima facie, their entitlement to judgment as a matter of law.
Happy September!  Prediction: Buffalo Bills 20, New York Jets 13.

 

 

Indemnity Issues in Labor Law

                                                                                    by:    Steven E. Peiper
(716) 849-8995
[email protected]
08/29/12         Arrendal v Trizechahn
Appellate Division, Second Department

Plaintiff was employed by Daisy’s Subway.  Daisy’s Subway sub-leased the space from Subway Real Estate.  Subway Real Estate originally leased the premises from Trizechahn who owned the building.  During the course of his employment with Daisy’s Subway, plaintiff tripped over a metal bar and fell into a trash compactor.  As a result of the incident, plaintiff commenced the instant claim against Trizechahn.  Trizechahn answered by asserting as an affirmative defense that plaintiff’s injuries were caused by his own comparative negligence, and were not the fault of Trizechahn. 
Thereafter, Trizechahn commenced a third-party action against Subway Real Estate wherein it sought contractual indemnification against Subway Real Estate.  The clause relied upon by Trizechahn provided a right of indemnification for losses “caused by the ‘negligence’ of an agent or licensee of Subway Real Estate.”  Trizechahn argued that as the loss was caused by the negligence of Subway Real Estate’s licensee, Daisy’s Subway, the indemnity clause had been triggered. 
Unfortunately for Trizechahn, the Appellate Division disagreed.  Essentially, the court ruled that the term “negligence” did not mean the comparative negligence of an employee of Daisy’s Subway.  Rather, the clause was only interpreted to provide indemnity protection to Trizechahn where the negligence of an agent or licensee caused injury to a third-party.  Any recovery awarded to plaintiff would be reduced by his comparative fault.  Thus, the Court reasoned that it was an unreasonable interpretation of the clause to apply it to limit the recovery of the plaintiff, but then apply in on the back end again to pass through whatever liability was unrelated to the plaintiff to his employer. 

 

08/29/12         Arrendal v Trizechahn
Appellate Division, Second Department

Plaintiff was injured when he fell into a dumpster located at, or nearby, the loading dock of the building owned by Trizechahn.  Trizechahn asserted cross-claims for common law and contractual indemnity against Summit Security Services.   Prior to the accident, Summit had contracted with Trizechahn to provide security at the building.  This included the area around the building’s loading docks. 
Summit opposed both claims, and moved for summary judgment accordingly.  In support of its motion, Summit argued that it’s only obligation was to provide security.  It had no duty, under contract or at common law, to monitor access to the building’s dumpster.  Where, as here, Summit’s duties were totally unrelated to trash collection, it followed Trizechahn had no basis for a common law indemnity claim. 
In addition, Trizechahn’s claims for contractual indemnity were likewise dismissed where Summit established that it possessed no contractual obligations relative to trash collection.  In affirming the dismissal, the Second Department noted that there was no evidence that Summit breached any duty created under the “security personnel service” contract. 

 

 

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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

 

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