Volume II, No. 12
Wednesday, October 3, 2013
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Welcome to the October edition of Labor Law Pointers. Thanks to all of you who attended our webinar last month, we had 99 attendees. Whoever it was that got busy that morning and could not attend we will get over not hitting 100 at some point. Steve Peiper and I had a great time doing the webinar and the response has been very pleased with the positive response we received. We plan on doing a new and different webinar in a few months and are tentatively planning on doing it several times per year. Our next webinar looks like we will be reviewing the most important decisions from the last decade in labor law and indemnity.
Thanks also to everyone who had comments regarding the Empire State Building pictures I put in. I am including an attachment of the best follow up sent to me. The Empire State Building was started in 1930, 40 years before OSHA was created by President Nixon. The attachment shows the workers, without any fall protection or safety devices of any type, working high above NYC. During construction 5 workers were killed, one hit by a truck. The photos are amazing. Thanks to Tom Wilkinson from IFG for sending this to me.
Once again we have a light month. We were spoiled last few years with the volume of labor law cases coming out of the Court of Appeals, noting yet this year however.
As I do every month I encourage anyone with a question to call, email, text or just stop by and we would be happy to work out the issues for you. Labor law, indemnity, coverage or any topic for that matter and we would love to try and figure out the scenario for you, the more complex the more we like it.
Please feel free to distribute this newsletter to anyone who you think might enjoy it and if there is anyone who wants to be added to the distribution list just drop me a line. The names in the newsletter, as well as the case names and anything that is in blue and underlines, are hyperlinks. Just hit control and click on them and it will take you directly to whatever the link refers to.
Hope you enjoy the cases and analysis this month. See you after Halloween.
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Email: [email protected]
H&F Website: www.hurwitzfine.com
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
Arto v Cairo Const., Inc.
September 18, 2013
Appellate Division, Second Department
Plaintiff brought this action against contractors hired by the homeowner to perform work in connection with a home renovation project, for injuries allegedly sustained while working on the roof of the homeowner’s house. Defendants Cairo and Cairo Construction, Inc. were hired by the Mathias Arnold, the homeowner. Plaintiff was employed by a roofing contractor. Plaintiff and his wife brought claims alleging violation of Labor Law § 240(1).
At trial, Arnold testified that he hired defendants to replace the windows, siding, and roof on the house, that defendants hired plaintiff’s employer to do the roofing work, and that defendants supervised and controlled the roofing work. Plaintiff also testified that defendants supervised and controlled his work. Conversely, Mr. Cairo testified that he was hired only to replace the siding and windows, and that he recommended a roofing contractor to Arnold, but that Arnold contracted with the roofing contractor. Mr. Cairo also testified that he did not supervise or control the injured plaintiff’s work.
At the close of the evidence, the trial court submitted to the jury the following question: “Was defendant Joseph Cairo d/b/a Cairo Construction the general contractor, coordinating the trades, on the project? The jury answered the question in the negative, and plaintiffs’ complaint was dismissed.
The Second Department reversed as the trial court erred in submitting the above question to the jury, over plaintiffs’ objections. Labor Law § 240(1) imposes liability not only on owners and general contractors, but also upon agents of the property owner who have the ability to control the activity which brought about the injury. Here, the evidence at trial demonstrated that the home renovation project included aspects other than the replacement of the siding, windows, and roof, which aspects plaintiffs did not claim were controlled by defendants.
According to the Second Department, the question as to whether defendants were acting as the “general contractor, coordinating the trades on the project” was ambiguous because it was unclear whether the jury was to consider whether defendants “coordinated” all of the trades on the project, or just the siding, windows, and roofing trades. The Second Department held the jury should have been instructed to determine whether defendants were acting as the homeowner’s agent, with the authority to supervise and control plaintiff’s work on the roof. As the trial court’s error was not harmless, the Second Department required a new trial.
PRACTICE POINT: Sometimes you need to be careful what you wish for. Here, the defense got what looked like a very favorable charge from the court regarding the issue of the appropriateness of their status as a defendant in a labor law case. What is missing from the decision is whether the plaintiff requested a charge which would have included the status of the defendant as an agent of the owner. An agent of the owner is someone with the “authority to supervise and control the injured plaintiff's work”. Assuming that they requested that charge and it was not given this is the natural result. As a trial lawyer we are sometimes putin a diffult position, where we feel the charge may result in a reversal as proposed, but the change requested by the opposing party reduces our chances of a favorable verdict. In such a situation it is necessary to weigh the odds of a favorable verdict in both scenarios and balance that against the odds of a reversal and discuss the potential result with your client and/or carrier. As a result of the charge not including that potential status of the defendant the case needs to be tried all over again.
Grant v City of New York
September 25, 2013
Appellate Division, Second Department
Plaintiff allegedly sustained injuries when he fell from a ladder while performing electrical work at a New York City school. He brought this action, alleging violations of Labor Law §§ 240(1), 241(6) and 200, as well as common-law negligence. The City of New York brought a third-party action against plaintiff’s employer, A & S Electric (“A&S”).
The trial court denied plaintiff’s motion for summary judgment with respect to the § 240(1) and § 241(6) and denied third-party plaintiff’s motion to dismiss the complaint. The trial court further denied third-party defendant’s motion to dismiss the third-party claim for contractual indemnification; and granted third-party plaintiff’s motion for same.
The Second Department held that here, plaintiff established prima facie entitlement to judgment as a matter of law with respect to the § 240(1) claim because he submitted evidence that he fell from an unsecured straight ladder when it shifted to the side, and that the failure to secure the ladder proximately caused his injuries.
Contrary to the City’s contention, plaintiff’s alleged failure to have a coworker hold the bottom of the ladder or to use an available nylon rope to secure the bottom of the ladder to a stationary object did not raise a triable issue of act as to whether plaintiff’s conduct was the sole proximate cause of the accident. Thus, the trial court should have granted plaintiff summary judgment on his the § 240(1) claim.
PRACTICE POINT: This case is somewhat limited on fact as it does not indicate exactly what the court found missing from the sole proximate cause defense. As you have heard me say a thousand times, there are three elements that must be met to establish that defense. First there must be an appropriate safety device which is (second) available to the plaintiff and third the plaintiff must have been instructed to use that device or must be aware that he was required to use such device. Absent any of these three elements the sole proximate cause argument fails.
Labor Law § 241(6) (JAE)
With regard to the 241(6) claim, plaintiff demonstrated his entitlement to summary judgment, and a reversal of the lower court decision, by submitting evidence of a violation of 12 NYCRR 23-1.21.(b)(4)(iv). This provision contains requirements for work on ladder rungs between six and 10 feet above the ladder footing, and work on rungs higher than 10 feet. For the lower rungs, the ladder must be held in place by a person unless the upper end of it is secured against side slip by its position or by mechanical means. For work on the higher rungs, those over 10 feet, mechanical means for securing the upper end of such ladder against side slip is required and the lower end needs to be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used. While it is not clear from the decision what height plaintiff fell from, the court found that the violation was a proximate cause of the loss.
Labor Law § 200 and Common-Law Negligence (VCP)
The City cross-moved for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence causes of action. The Second Department held that the City established its prima facie entitlement to judgment as a matter of law dismissing the plaintiff's Labor Law § 200 and common-law negligence causes of action through the submission of evidence that it did not have the authority to exercise that degree of direction and control necessary to impose liability under those causes of action, and the plaintiff failed to raise an issue of fact.
Indemnity Issues in Labor Law (SEP)
Importantly, at the motion stage of this case, NYC established that it did not supervise, direct or control the work of the plaintiff. As such, it was not liable to plaintiff for common law negligence. It followed that NYC was, in fact, entitled to contractual indemnity against A&S Electric.
A&S Electric argued that because the indemnity clause conceivably provided indemnification for NYC’s own negligence, the provision was voided by operation of General Operations Law § 5-322.1. That argument failed where, as here, it was established that NYC was not negligent.
In so holding, the Court also reminded us that liability under Labor Law § 240(1) is statutory. It does not, contrary to A&S’ argument, establish any degree of negligence against NYC.
Signs v Crawford
September 27, 2013
Appellate Division, Fourth Department
Plaintiff allegedly sustained injuries when a metal plate that was being hoisted by a jib fell and caught plaintiff’s glove, causing him to fall from scaffolding.
Plaintiff filed this action, alleging violation of Labor Law § 240(1). Defendant property owner moved for summary judgment, arguing that plaintiff’s actions in attempting to prevent the metal plate from falling were the sole proximate cause of the accident. The trial court denied defendant Crawford’s motion regarding the § 240(1) claim, and granted plaintiff’s cross-motion for partial summary judgment on that claim.
The Fourth Department affirmed the trial court’s decision, holding the metal plate fell and struck plaintiff “because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240(1).” With respect to Crawford’s sole proximate cause argument, the Fourth Department reiterated a fundamental Labor Law § 240(1) principle; comparative negligence is not an available defense under § 240(1).
Crawford also argued that the accident was caused by a hazard unrelated to the safety device. However, the Fourth Department held the work being performed by plaintiff “involved an elevation-related risk and not a usual and ordinary risk of a construction site to which the extraordinary protections of Labor Law § 240(1) do not extend.”
PRACTICE POINT: When an object falls and strikes the plaintiff causing injury in a case involving an appropriate plaintiff and defendant, it will be a labor law case as long as the object was either being hoisted or should be secured. The actions of a plaintiff, unless it is failing to use and appropriate and available safety device, will not change the outcome of the motion, Summary Judgment for the plaintiff.
Gaffney v Norampac Indus., Inc.
September 27, 2013
Appellate Division, Fourth Department
Plaintiff allegedly sustained injuries when a seal located on top of a loading dock door fell and struck him on the head. At the time of the accident, plaintiff and his coworker were testing a dock lock they had just repaired. Defendant moved for summary judgment on the Labor Law § 240(1) claim, and plaintiff cross-moved for partial summary judgment on that claim and his Labor Law § 200 and common-law negligence claims. The trial court granted defendant’s motion with respect to the § 240(1) claim, and denied plaintiff’s motion with respect to the Labor Law § 200 and common-law negligence claims.
The Fourth Department noted that the door seal located above plaintiff did not “require securing for the purposes of the undertaking” and therefore, § 240(1) does not apply here because “this was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.”
Accordingly, the Fourth Department affirmed the trial court’s decision to grant defendant summary judgment with respect to the § 240(1) claim.
PRACTICE POINT: Here the seal on the top of the door was in no way a portion of the repair work the plaintiff was involved in. I have had a few questions about this case and the analog I have used it this; if the plaintiff were involved in erecting steel on a new office building, clearly a covered project and activity, and the engine falls off a plane flying over the site and lands on the plaintiff, is that a labor law case. Obviously not so why would a part falling which was in no way a part of the project undertaken it cannot be a labor law case.
The Fourth Department upheld the denial of plaintiff's cross-motion for summary judgment on Labor Law § 200 and common-law negligence. Plaintiff failed to establish as a matter of law that defendant either created the defective condition or had actual or constructive notice of it. The Court rejected plaintiff's contention that he met his burden by establishing that defendant did not inspect the seal prior to the accident, reasoning that the duty of landowners to inspect their property is measured by a standard of reasonableness under the circumstances and it is for a trier of fact to determine whether defendant's conduct was reasonable.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
Regulation § 23–4.2 involving shoring and stabilization of trenches, is sufficiently specific to support a Labor Law § 241(6) cause of action, and held applicable where plaintiff working inside excavation claimed that he fell when ground under ledge he was standing on collapsed underneath him (Wells v British American Development Corp., 2 AD3d 1141, 770 NYS2d 161 [3d Dept 2003]); held potentially applicable to injury caused by piece of concrete falling into excavation (Fischer v State, 291 AD2d 815, 737 NYS2d 204 [4th Dept 2002]). Regulation § 23–4.2 held inapplicable where plaintiff, who was standing in trench, injured his back when he caught sewer pipe that coworker attempted to hand him from above (Adamczyk v Hillview Estates Dev., 226 AD2d 1049, 641 NYS2d 204 [4th Dept 1996]).
The Supreme Court (New York’s lowest trial court) providently exercised its discretion in finding that expert testimony was necessary to establish composition of soil for purposes of determining which § 23–4.2(a) specifications applied.
Regulation § 23–4.2(g) providing protection to workers in excavation trenches, held inapplicable where material that struck plaintiff did not fall as a result of the failure to clear slope (McCombs v Cimato Enterprises, Inc., supra); held inapplicable to ground level accident (Friot v Wal-Mart Stores, Inc., 240 AD2d 890, 659 NYS2d 126 [3d Dept 1997]); held inapplicable where plaintiff, who was carrying a 24-foot scaffold pick from a truck to building, was injured while walking over 4 to 5 feet pile of dirt (McGrath v Lake Tree Vil. Assocs., supra).
Regulation § 23–4.2(h) requiring open excavations be effectively guarded by fences, barricades or by coverings, is sufficiently specific to support a Labor Law § 241(6) cause of action, and held applicable where worker fell into excavation4 to 5 feet away from company truck (Scarso v M.G. General Contr. Corp., supra). Regulation § 23–4.2(h) held inapplicable where worksite had kerf cuts but there was not yet any excavation (Sparendam v Lehr Const. Corp., 24 AD3d 388, 807 NYS2d 335 [1st Dept 2005]).
Regulation § 23–4.2(i) ___, held inapplicable since the accident did not occur in unattended open excavation where no work was being performed (Smith v Monroe, 229 AD2d 984, 645 NYS2d 258 [4th Dept 1996]).
Regulation § 23–4.2(k) providing that persons shall not be suffered or permitted to work in an area where they may be struck or endangered by excavation equipment or dislodged material, not sufficiently specific to support a Labor Law § 241(6) cause of action (Sparendam v Lehr Const. Corp., supra; Friot v Wall-Mart Stores Inc., supra; Webber v Dunkirk, 226 AD2d 1050, 641 NYS2d 927 [4th Dept 1996]).
Regulation § 23–4.3 requiring ladders be provided in any excavation more than three feet deep, is sufficiently specific to support of Labor Law § 241(6) cause of action (Allen v Hodorowski and DeSantis Bldg. Constrs., 220 AD2d 959, 632 NYS2d 707 [3d Dept 1995]).
Regulation § 23–4.3 held applicable to accident occurring when plaintiff stepped or jumped three to four feet top of berm to flattened area in 15-foot excavation and tumbled to bottom of excavation (Bockmier v Niagara Recycling, Inc., 265 AD2d 897, 807 NYS2d 335 [4th Dept 1999]); held inapplicable where plaintiff was provided with ladder for access into excavation and was not entering into or exiting from excavation when accident occurred (Gielow v Rosa Coplon Home, supra); held inapplicable because accident did not occur on ladder, stairway or ramp providing access to an excavation (Doty v Eastman Kodak Co., 229 AD2d 961, 646 NYS2d 474 [4th Dept 1996]); a question of fact as to whether § 23–4.3 applied where plaintiff fell while walking down the side of an anchor trench (Smith v Monroe, supra); held inapplicable where plaintiff, who was standing in a trench, injured his back when he caught sewer pipe that coworker attempted to hand him from above (Adamczyk v Hillview Estates Dev., supra).
Regulation § 23–4.4 prescribing standards for sheeting, shoring and bracing excavations that do not have sloping sides, is sufficiently specific to support a Labor Law § 241(6) cause of action and held applicable where plaintiff working inside excavation claimed that he fell when ground under ledge he was standing collapsed underneath him (Wells v British American Development Corp., supra); and may be applicable to injury caused by piece of concrete falling into excavation (Fischer v State, supra). Regulation § 23–4.4 held inapplicable where plaintiff, who was standing in trench, injured his back when he caught sewer pipe that coworker attempted to hand him from above (Adamczyk v Hillview Estates Dev., supra).
Regulation § 23–4.5 prescribes minimum sizes for stringers and timbers used in shoring and bracing excavations, held applicable where plaintiff working inside excavation claimed he fell when the ground under the ledge he was standing on collapsed underneath him (Wells v British American Dev. Corp., supra). Regulation § 23–4.5 held inapplicable where plaintiff, who was standing in trench, injured his back when he caught sewer pipe that coworker attempted to hand him from above (Adamczyk v Hillview Estates Dev, supra); inapplicable where plaintiff not using scaffolding at the time he fell (Bennion v Goodyear Tire & Rubber Co., supra).
Regulation § 23-5.1 establishing standards for scaffolds, is sufficiently specific to support a § 241(6) cause of action, and applicable where worker fell of wooden scaffold while working on one-family house (Tomyuk v Junefield Assoc., supra). However, regulation § 23-5.1 held inapplicable where plaintiff allegedly fell between ceiling joists (Pilato v Nigel Enterprises, Inc., 48 AD3d 1133, 850 NYS2d 799 [4th Dept. 2008]); inapplicable where plaintiff slipped and fell on stack of pipes (Basile v Kaiser Eng. Corp., 227 AD2d 959, 643 NYS2d 854 [4th Dept. 1996]).
Regulation § 23-5.1(b) delineates safety standards for scaffolds erected on or supported by the ground, is sufficiently specific to support a § 241(6) cause of action (O’Connor v Spencer (1997) Investment Ltd. Partnership, 2 AD3d 513, 769 NYS2d 276 [2d Dept. 2003]). Regulation § 23-5.1(b) held potentially applicable where scaffold being dismantled tipped backwards, causing plaintiff to fall to the ground (Calderon v Walgreen Co., 72 AD3d 1532, 900 NYS2d 533 [4th Dept. 2010]); potentially applicable where worker standing on stack of bricks piled onto scaffold fell to scaffold planking (Abreo v URS Greiner Woodward Clyde, 60 AD3d 878, 875 NYS2d 577 [2d Dept. 2009]).
Regulation § 23-5.1(c) prescribing standards for scaffold structures, is sufficiently specific to support a § 241(6) cause of action, and potentially applicable where worker standing on stack of bricks piled onto scaffold fell to scaffold planking (Abreo v URS Greiner Woodward Clyde, supra).
Regulation § 23-5.1(c)(1) prescribing the weight bearing capacity of scaffolds, is not sufficiently specific to support a § 241(6) cause of action in the First Department (Macedo v J.D. Posillico, 68 AD3d 508, 891 NYS2d 46 [1st Dept. 2009]). However, regulation § 23-5.1(c)(1) is sufficiently specific to support a § 241(6) cause of action in the Second Department, and held potentially applicable where a question of fact existed as to whether the makeshift scaffold was constructed so as to bear four times maximum weight to be carried (Treu v Cappelletti, 71 AD3d 994, 897 NYS2d 199 [2d Dept. 2010]).
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Labor Law Pointers
David R. Adams
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Steven E. Peiper
Jennifer A. Ehman
Marc A. Schulz
Labor Law Team
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202
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