Labor Law Pointers

Volume II, No. 8
Wednesday, June 5, 2013

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

From the Editor:   Another month’s worth of labor law cases are in the books as they say, and ready for your review.  Our analysis of this month’s cases is below just begging to be read.  Nothing too earth shattering this month but some interesting cases.  In one particularly tragic case a worker was fitting pipe when the bucket of a back hoe was accidentally lowered onto him causing what sound like horrific injuries.  Doubly unfortunately for the plaintiff as the bucket was not falling, and did not need to be secured, it was not a labor law case.  The individual who lowered the bucket onto him was a co-employee and thus he did not have a negligence cause of action against him as it was precluded by comp section 11.  The 241(6) claim is still alive based on a question of fact as outlined below.

I have had some interesting questions this month and I will throw a few of them out there for your entertainment.  Here is an email I received this month;

Question ?

  1. Insured and his friend are Painting the insured’s ONE family home
  2. There is NO money being exchanged
  3. They have two ladders ( insured ladders ) and the Friend falls
  4. Is the claimant friend a “ worker “
  5. Is this site a “ construction site “

My answer was as follows,

Answers in order;

  1. Insured and his friend are Painting the insured’s ONE family home  ANSWER  if a home for residential use and not commercial use, not a labor law claim unless the owner provides supervision, direction or control.
  2. There is NO money being exchanged   ANSWER Volunteer so not a plaintiff
  3. They have two ladders ( insured ladders ) and the Friend falls
  4. Is the claimant friend a “ worker “  ANSWER  no
  5. Is this site a “ construction site “  ANSWER  yes, but see above regarding single family home owner who does not supervise, direct or control the work, the task undertaken would qualify, painting specifically identified in the statute.

I also attached the Stringer case in which the Court of Appeals held that “The primary purpose of Labor Law § 240 (1) is to extend special protections to "employees" or "workers". Inclusion in this "special class for whose benefit absolute liability is imposed" requires a plaintiff to "demonstrate that 'he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent'.   As a result, we have held that the statute does not apply to a volunteer who performs a service gratuitously.   A nice refresher on that important point.

Next question was a plaintiff who slipped on a slippery step on a step ladder.  This one was easy, ladder was slippery, plaintiff fell, labor law 240(1).  The provided safety device did not protect the plaintiff, he was injured in a gravity related accident, end of story there. 

Last one for now, NYC Window washer was on a high rise building cleaning a window when he dropped his squeegee. The squeegee struck a passerby in the head. Would that person be able to make a 240 claim?
Answer is above in the first question.  In this case the injured person would not be an employee of anyone working at the site and this not a person protected by the statute.  Nice negligence case against the guy who dropped the squeegee but not a labor law case.
On another note I have done several webinars lately for specific groups but have had a fair bit of interest from individual adjusters for some labor law training.  I am thinking of putting on a webinar for anyone who wants to sit in.  If you are interested please just send me an email and we will get something scheduled for a time when everyone is available.
As always, call or email with any questions.  I enjoy discussing interesting fact patterns almost any time of the day or night, I did say ALMOST.  Enjoy the start of summer and see you next month.
David

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

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  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) 849-8916.

 

Probst v 11 W. 42 Realty Invs., LLC
May 1, 2013
Appellate Division, Second Department

                 Plaintiff was injured while performing commercial window cleaning work without the use of a ladder.  The trial court denied plaintiff summary judgment on his Labor Law § 240(1) cause of action and denied defendants cross-motion to dismiss.

Labor Law § 240(1) (DRA)

The Appellate Court held that the evidence established, prima facie, that the injured plaintiff was performing work which exposed him to an elevation-related risk encompassed by the statute and that the failure to provide him with a ladder or other safety device was a proximate cause of his accident.  In opposition, however, defendants raised a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his accident because he allegedly failed to use a ladder which his employer made readily available to him, and disregarded to use ladders when necessary.  Accordingly, the trial court properly denied the parties’ respective motions.

                 The Appellate Court also affirmed denial of summary judgment to defendants as their submissions failed to eliminate all issues of fact as to whether plaintiff had access to adequate safety devices such as a ladder, and whether the absence, if any, of adequate safety devices was a proximate cause of the accident.  According to the Appellate Court, as there was an issue of fact as to whether the alleged failure to provide plaintiff with access to adequate safety devices was a proximate cause of the accident, plaintiff’s deposition testimony that he dripped soapy water onto the surface of the heating convector from which he slipped did not establish, as a matter of law, that his conduct was the sole proximate cause of the accident. 

PRACTICE POINT:    A great refresher as to the elements needed to win a Summary Judgment motion on a Labor Law case for both sides.  The plaintiff needs to set forth the prima facie case, that it was the failure of or lack of a safety device which caused the plaintiff to sustain a gravity related injury.  The defendant, to obtain Summary Judgment on sole proximate cause needs to establish that the plaintiff was supplied with an appropriate safety device, which he was instructed to use, and which he did not use or miss-used for no apparent reason.  The failure of either party to establish these without a question of fact will result in the result we see here, a question of fact denying the motion to both sides. 

 

Marquez v 171 Tenants Corp.
May 2, 2013
Appellate Division, First Department

            Plaintiff was injured when the ladder on which he was standing while painting a foyer outside third-party defendant Kleinberg-Levin’s apartment twisted and then slipped out from underneath him.  Before discovery commenced, plaintiff moved for summary judgment on liability under Labor Law § 240(1).  The trial court denied plaintiff’s motion.

Labor Law § 240(1) (DRA)
The Appellate Court affirmed the denial and permitted discovery because the affidavit of Kleinberg-Levin, who hired plaintiff’s employer and was in his apartment at the time of the accident, states that no ladders were being used on the project on the date of the alleged accident.  
According to the Appellate Court, this affidavit raises an issue of fact regarding whether plaintiff’s accident occurred as alleged.  Further, defendant submitted medical reports wherein plaintiff was quoted as providing a different description of the accident from that alleged. 

PRACTICE POINT:   This would seem at first blush to be a slam dunk 240(1) case for plaintiff.  He is on a ladder and it shifts causing him to fall.  We have always recommended through investigation of the accident including speaking with anyone who was present at the site of the accident.  In this case finding a witness who was present and who affirmed that the plaintiff could not have been using a ladder at the time he fell as none were present on the job site established a question of fact precluding plaintiff’s Summary Judgment motion.  The fruit of early investigation is denial of Summary Judgment in what appeared to be a great case for the plaintiff. 

 

Olea v Overlook Towers Corp
May 2, 2013
Appellate Division, First Department

            Plaintiff was injured after he fell while attempting to go from the balcony where he had been working onto a motorized scaffold.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and granted defendants’ cross-motions to dismiss. 

Labor Law § 240(1) (DRA)
The Appellate Court reversed and granted plaintiff’s motion because defendants’ failed to establish that plaintiff was the sole proximate cause of his accident.  The president of defendant York Restoration Corp. testified that a worker would customarily go from a balcony to a motorized scaffold by jumping onto the scaffold and then climbing over its railing, which was the very method plaintiff was trying to employ when he fell.  Moreover, the Appellate Court determined the evidence is inconclusive about whether safety lines were available at the time of the accident and whether plaintiff had been instructed to use them. 
The Appellate Court further held that even if plaintiff was negligent in performing the above acts or in failing to dismantle pipe scaffold blocking, his acts were not the sole proximate cause of his accident as the president of Lopez admitted that it would have been safer to provide ladders to protect a worker in going from a balcony to a motorized scaffold.  Thus, the evidence shows that defendants violated the statute by failing to provide an adequate safety device.
PRACTICE POINT:  The third and critical element of the sole proximate cause defense is that the plaintiff needs to have been instructed, or understand, that he is to use a different method or safety device to accomplish the job and to have ignored that instruction.  Even where the appropriate safety device is available right there for the plaintiff if he was not instructed to use it and did not know he was expected to use it, the sole proximate cause claim will fail.  Again I recommend that a thorough investigation be conducted including all handbooks and employee instructions.   Often an employee handbook will indicate that a specific job it to be done a specific way.  That has been held to be sufficient instruction to support a sole proximate cause Summary Judgment motion.  Here, the fact that the employer had been allowing his employees to access the scaffold by jumping off the balcony defeats any attempt to argue that the employee knew he was not to do the job in that manner.

Marrero v 2075 Holding Co. LLC
May 2, 2013
Appellate Division, First Department

            Plaintiff was walking across plywood planks covering fresh concrete when the plywood planks buckled and shifted.  As a result, the A-frame cart containing Sheetrock and two 500-pound steel beams tipped over toward plaintiff and the steel beams fell, landing on his left calf and ankle.  The trial court denied plaintiff summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law § 240(1) (DRA)
The Appellate Court held that plaintiff made a prima facie showing that his injuries were caused by a failure to protect against a risk arising from a significant elevation differential because the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff’s leg.  The Appellate Court held the height differential was not de minimis given the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent. 
In opposition, defendants submitted the affidavit of plaintiff’s foreman, who observed the scene shortly after the accident but did not witness it.  His affidavit stated: “I believe that the beam may have been stacked on the floor behind or next to the cart” and further, that “I determined that the boards and A-frame cart tipped over and may have knocked down a beam.”  The Appellate Court held these speculations and inconsistent statements insufficient to raise a triable issue of fact, especially in light of the fact that the foreman did not witness plaintiff’s accident.  
PRACTICE POINT:  In what can only be described as a perfect combination of Runner and Willinski, what we have here is a very heavy object falling from the same height as the plaintiff causing injury.  An interesting aspect of this case is that the plaintiff was the only witness to the accident.  When I started handling labor law cases an un-witnessed accident effectively precluded the plaintiff from being granted Summary Judgment.  Here the court agrees that a prior conviction is grounds to challenge the witness’s testimony and raise an issue of credibility during a trial but the court said that it is not sufficient grounds to deny the plaintiff’s Summary Judgment motion when the plaintiff himself is the sole witness to the accident.
Labor Law § 241(6) (JAE)
Plaintiff was granted Summary Judgment based on violations of 12 NYCRR 23-2.1(a)(2). Section 23-2.1(a)(2) states that "[m]aterial and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold."  As the testimony was that the plaintiff was injured when a cart tipped over due to the floor buckled this was sufficient basis for the plaintiff to be granted Summary Judgment.  The speculative statements of the plaintiff’s foreman were insufficient to create a question of fact as to how the accident happened as he did not see the accident occur and his opinion as to what must have happened was deemed to be speculation. 

Plaintiff claims based on 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1) were however dismissed.  Section 23-1.7(e)(2) is inapplicable because the accident was not caused by materials or tools scattered on the floor and section 23-2.1(a)(1) is inapplicable because there is no allegation that the accident occurred in a passageway, walkway, stairway, or other thoroughfare.  Small consolation to the defendant where 240(1) has been granted.

 

Babiack v Ontario Exteriors, Inc.
May 3, 2013
Appellate Division, Fourth Department

            Crescent owns property improved by condominiums, and plaintiff, an employee of Williamstown, was injured when he fell through a skylight in the roof while he was installing insulation in roof rafters at the condominium complex owned by Crescent. 
Labor Law § 240(1) (DRA)
The Appellate Court held plaintiff’s fall through skylight is the very type of elevation-related accident encompassed by the statute.  However, Ontario established that it did not coordinate and supervise the project and that it was not an agent of the owner to which the owner delegated the power to supervise and control plaintiff’s work.
PRACTICE POINT:  Do not forget to explore the propriety of the defendant as a labor law defendant.  In this case the defendant was successful in establishing that the defendant’s role in the project did not qualify them as an appropriate defendant.  A careful review of the contracts is always in order to determine if the defendant had the requisite authority to qualify as an agent of the owner or as a contractor as defined by the statute and case law. 
Labor Law § 241(6) (JAE)
With respect to § 23-1.7 (b)(1)(i), which concerns hazardous openings, the court held  that Crescent failed to establish that    it did not violate the regulation, that the regulation was not applicable to the facts of this case, or that the violation was not a proximate cause of the accident.
Labor Law § 200 and Common-Law Negligence (VCP)
The court also properly denied those parts of Ontario's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action against it. Labor Law § 200 and common-law negligence impose liability on a defendant that, inter alia, created a dangerous condition at the work site, and Ontario failed to meet its initial burden of establishing that it did not create the dangerous condition, i.e., the unguarded skylight opening through which plaintiff fell.

Ramirez v Metropolitan Transp. Auth.
May 8, 2013
Appellate Division, Second Department

            Plaintiff was working on elevated subway tracks, on a catwalk, when the plank he was standing on broke.  Plaintiff fell through the catwalk only part-way to his thighs, catching himself with his arm.  The trial court granted plaintiff summary judgment on his § 240(1) claim, and denied defendants cross-motion to dismiss the § 200 claim as well as the § 241(6) claim based on Industrial Code § 23-17, 23-1.15, 13-1.16, 23-1.17 and 23-3.3.
Labor Law § 240(1) (DRA)
The Appellate Court affirmed, holding that § 240 applied to the catwalk because it was the functional equivalent of scaffolding and not a mere passageway.  Defendants also failed to raise a triable with respect to their sole proximate defense, seemingly not even a close call as the Appellate Court failed to elaborate.
PRACTICE POINT:  This case points out that the plaintiff does not need to fall all the way to the ground for 240(1) to apply.  Recall the case where Summary Judgment was granted to the plaintiff where the plaintiff loses his balance while on a ladder and grabs an overhead pipe to prevent himself from falling to the ground. 

Labor Law § 241(6) (JAE)
The Appellate Court affirmed the decision regarding § 23-5.1(c) ("Scaffold Structure") as defendants failed to establish whether it applied to the facts.  However, the trial court should have dismissed the claims based on § 23-1.7, § 23-1.15, § 23-1.16, § 23-1.17, and § 23-3.3 because defendants established those provisions were not applicable to the facts because § 23-1.7(b) applies to hazardous openings, not elevated hazards.  Further, § 23-1.15 concerns safety railing standards and here, there was no allegation that the railing failed, but that the planks on the catwalk broke and plaintiff fell thigh high. 
As § 23-1.16 deals with safety belts, harnesses, tail lines and lifelines and it was undisputed that plaintiff was not wearing any of those safety devices and such devices were offered, there was no violation.  Notably, since plaintiff did not fall all the way through the catwalk, the Appellate Court held the lack or failure of a lifeline could not be a proximate cause of this injury.  Plaintiff was not engaged in demolition and thus, § 23-3.3 (“Demolition by hand”) did not apply.  For those still reading, demolition is defined, under § 23-1.4(6), as “the work incidental to or associated with the total or partial dismantling or razing of a building or other structure.”
Labor Law § 200 and Common-Law Negligence (VCP)
Where, as here, a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident” In opposition to the defendants' prima facie showing that they lacked actual notice of a dangerous condition, the plaintiff's deposition testimony that he had seen rotten, discolored planks on the catwalk and had reported the condition to the defendants' foreman on three occasions in the two months prior to his accident was sufficient to raise a triable issue of fact as to whether the defendants had actual notice of the dangerous condition. Moreover, photographs of the broken catwalk in the record show cracked, warped, and discolored planks. Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defect.

Ross v 1510 Assoc. LLC
May 9, 2013
Appellate Division, First Department

            Plaintiff was injured when the A-frame ladder he was standing on tipped over after it shifted because of the unevenness of the floor and he fell.  Plaintiff submitted an affidavit by a witness present immediately after the accident who observed the uneven condition of the floor.  The trial court granted plaintiff summary judgment on his § 240(1) claim.
Labor Law § 240(1) (DRA)
The Appellate Court held the accident involved an elevation-related risk, and plaintiff’s injuries were proximately caused, at least in part, by defendants’ failure to provide him with proper protection under the statute.  Defendants’ sole proximate cause argument was rejected because there was no evidence that plaintiff fell simply because he lost his balance.
PRACTICE POINT:  In all four departments where a ladder shifts causing the plaintiff to fall it is a 240(1) case.  Tough one to beat.

Mohamed v City of Watervliet
May 9, 2013
Appellate Division, Third Department

            Plaintiff was hit with a backhoe bucket while employed with Green Island.  At the time of the accident, plaintiff and two other employees were installing a T-connection to an existing water main so a new hydrant could be connected.  The T-connection was attached to the bucket of a backhoe by a chain, and one employee lowered the 9 ½ foot trench.  While the other employee and plaintiff began tightening the bolts to secure the T-pipe to the water main in the trench, the other employee exited the backhoe to check on the placement of the T-connection.  Meanwhile, the bucket remained suspended 3 ½ feet above plaintiff.  When the employee returned to the backhoe, the bucket rapidly descended into the trench, crushing plaintiff causing severe injuries.
Defendant City contracted with Clough Harbour to provide design and engineering services on the project.  Plaintiff brought suit alleging violations of §§§ 200, 240(1) and 241(6) based on Industrial Code § 23-4.2(k), 23-9.4(h)(5), 23-9.2(b) and (g), and 9.5(c) and (f).  The trial court denied plaintiff summary judgment on his §§ 240(1) and 241(6) and granted defendants’ dismissal of § 240(1) as well as portions of the § 241(6) claim.
Labor Law § 240(1) (DRA)
Liability under the statute extends to falling objects and falling workers, requiring “a showing that safety devices like those enumerated in the statute were absent, inadequate or defective, and that this was a proximate cause of the object’s fall, i.e., for the gravity-related injury.” 
Plaintiff argued this was a “falling object” case as the safety device itself – the backhoe acting as a hoist – was the falling object and failed its core objective of preventing harm to plaintiff.  Plaintiff’s expert concluded that the only way in which the accident could have occurred was that the employee accidently bumped or jostled the backhoe’s joystick, causing the bucket to lower and strike plaintiff.  Alternatively, he argued the backhoe was not properly placed or secured – because it was suspended over his head and thereafter became a “falling object” – and not properly constructed because it lacked safety devices to prevent the bucket from dropping.
The Appellate Court, viewing as it must the facts in the light most favorable to plaintiff, held the accident occurred as a result of the employee jostling the controls, causing the backhoe’s properly functioning hyradulic system to lower the bucket.  Accordingly, plaintiff’s evidence would establish “the backhoe bucket crushed plaintiff … not because of gravity, but because of its mechanical operation by an allegedly negligent coworker.”  The Appellate Court thus affirmed dismissal of the § 240(1) claim because, citing Runner, “there was no falling object – the harm did not flow directly from the application of the force of gravity to an object.”
PRACTICE POINT:  This case, while tragic, is not a labor law case.  The object simply did not fall but rather was lowered onto the plaintiff.  It was also not an object being hoisted and was not able to be secured.  There was no falling object.
Labor Law § 241(6) (JAE)
The court held that § 23-4.2 (k) is not sufficiently specific to support a Labor Law § 241 (6) claim.  In addition, as the "load" — the T-connection — was not being carried or swung over plaintiff's head at the time of the accident, the court dismissed the § 241(6) claim to the extent that it relied upon § 23-9.4 (h) (5), which provides that, "[w]here power shovels and backhoes are used for material handling, . . . [c]arrying or swinging suspended loads over areas where persons are working or passing is prohibited."   
The trial court correctly determined that factual questions exist regarding whether the hoisting operation was complete and whether the chain used to lower the T-connection was still connected.  The Appellate Court thus held there are material issues of fact whether the backhoe was handling a load (§ 23-9.2 [b] [2]), "at rest" (§ 23-9.2 [g]), "in use" (§ 23-9.5 [c]), and stopped or parked (§ 23-9.5 [f]). 

Fanning v Rockefeller Univ.
May 14, 2013
Appellate Division, First Department
Plaintiff sustained injuries after falling when the unsecured ladder he was working on suddenly moved.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The First Department held that plaintiff was not required to present further evidence that the ladder was defective.  Defendants failed to raise a triable issue of fact by presenting conflicting evidence regarding whether the A-frame ladder was 6 or 10 feet and whether it was made of wood or fiberglass because the statute was violation under either description.  The First Department held defendants’ sole proximate cause argument that plaintiff chose a ladder too short for the work he was performing was speculative and failed to raise an issue of fact.
PRACTICE POINT:  Again, the shifting ladder need not be defective, only shift causing the plaintiff to fall.  The rationale of the court for many years has been that if the ladder shifts causing plaintiff to fall it is a labor law case.

Britez v Madison Park Owner, LLC
May 16, 2013
Appellate Division, First Department

            Plaintiff sustained injuries when he fell off scaffolding while working in a building owned by Madison Park and managed by Walters & Samuels (W&S).  W&S retained G Builders as the construction manager, who subcontracted with National Interior (National) for drywall and carpentry work on a project to convert a building to luxury condos.  National subcontracted with Citywide, who subcontracted taping and spackling work to plaintiff’s employer, Pecci.

            The Purchase Order (PO) between G Builders and National delegated “all DRYWALL, CARPENRY AND CEILING scope of work” to National.  The PO required that National submit to G Builders “a listing of all proposed onsite supervision and associated management” and National’s subcontracting of a portion of its work to another subcontractor.  The trial court denied National summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims, and granted Madison Park, G Builders and W&S’ cross-motion on their contractual indemnification claim against National.  

Indemnity Issues in Labor Law (SEP)
Madison Park, G Builders and W&S all moved for contractual indemnification against National pursuant to the agreement entered into between G. Builders and National. The particular provision at issue provided that National would indemnify Madison Park G. Builders and Madison’s agent for liability “caused in whole or in part by acts or omissions” of National or someone working on behalf of National. As the incident “arose out of” National’s work, the indemnity clause was triggered.
In so holding, the Appellate Division rejected National’s argument that G. Builders was also negligent and therefore precluded from obtaining summary judgment. National’s argument fell upon deaf ears because the Labor Law § 200/Common Law Indemnity claim against Madison Park, G. Builders and W&S had previously been dismissed.
Peiper’s Point - Of note is the fact that the Appellate Division apparently had no problems granting an indemnity right to W&S. W&S, as you will recall, was the agent of Madison Park. Generally, where an “agent” is not otherwise defined in the contract, the provision will not be read to provide an indemnity right. We presume that W&S must have been named as the agent within the four corners of the contract at issue.

Boyd v Schiavone Constr. Con., Inc.
May 16, 2013
Appellate Division, First Department

            Plaintiff, a drilling operator, was going to use a drill rig as a crane to move material and equipment to another cart.  To that end, the drill rig had to be pivoted so that it faced the other cart.  Building foreman Clark and plaintiff testified that to pivot the drill, the chain binder and chains securing the drill rig to the cart had to be removed.  After the chains were removed, Clark either received instructions or decided on his own to continue to drill.  This required the rig be pivoted again, a hammer affixed and the boom plumbed. 

            With the chains detached, plaintiff moved the boom to a vertical position and when Clark reached for a level, plaintiff, who testified he was just standing on the cart waiting for the boom to be plumbed, felt the cart tip and the drill rig fell toward him, knocking him off the cart and pinned him to the tracks below.  Clark and plaintiff also testified the chains had to remain off for the boom to be plumbed.  The trial court denied plaintiff summary judgment on his Labor Law § 240(1) claim, finding there were triable issues of fact whether plaintiff was the sole proximate cause of his injuries. 

Labor Law § 240(1) (DRA)
“The sole proximate cause defense generally applies where the worker misused, removed or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an adequate device despite the availability of an adequate device.”  Here, plaintiff did not unilaterally elect to remove the chains and chain binders.  Clark, who had the discretion to make the determination in the field as to the manner in which the drill rig would be removed, determined the drill rig could not be pivoted with the chain binders attached, as did plaintiff.
Although third-party defendant Hayward Baker’s project superintendent testified that the chain should have been loosened, not removed, the First Department noted that he was not present when the decision was made and defendants offered no evidence that workers were instructed to loosen rather than remove the chains when they had to move the drill rig, plumb the mast, or remove or replace the hammer. 
Defendants’ professional engineer and engineering consultant opined that the use of the chains and chain binders to hold the drill rig to the carts and the use of C-clamps to secure the carts to the rail were reasonable and adequate protections for the workers.  The First Department held defendants’ expert based his opinion on the assumption that plaintiff removed the chains himself yet plaintiff testified that dock worker, probably Clark, removed the chains and Clark conceded that he did not remember and that another member of the crew, or even himself, may have removed them.  Thus, plaintiff’s motion for summary judgment was granted.    
PRACTICE POINT:  Recognizing the key element on which the motion will turn is important and not always easy.  Having an expert opinion can turn a losing case into a winning case or at least a question of fact.  But always remember the old adage; “garbage in, garbage out”.  Here the expert opinion was based on the assumption that the plaintiff removed the chains.  The factual basis for that assumption was flawed and thus the opinion was flawed.   We are trained to cross examine experts at trial, medical, economic and liability, based on the assumptions they start with.  The same is true in a Summary Judgment motion and must not be overlooked.  Always consider having your own expert review the other parties expert opinions even if you are not planning on having his testify.

Mouta v Essex Mkt. Dev. LLC
May 16, 2013
Appellate Division, First Department
Plaintiff sustained injuries when he stepped on a section of plywood platform that, unknown to him, was being dismantled, and he fell two floors.  The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1), denied defendant JF’s motion to dismiss and for summary judgment on its common law and contractual indemnification against third-party defendant Marganos and denied Essex’s motion on its common law and contractual indemnification claims against JF and Marganos.
The First Department modified the trial court’s decision by granting JF’s motion to dismiss the § 200 and common law negligence claims and the § 241(6) claims, and conditionally granted its cross-motion on its common law indemnification claims against Marangos.
Labor Law § 241(6) (JAE)

The Courted found, to the extent the § 241(6) claim was predicated on Industrial Code (12 NYCRR) §§ 23-1.5 (general responsibilities of employers), 23-1.8 (personal protective equipment), 23-1.11 (lumber and nail fastenings), 23-1.15 (construction of safety railings), 23-1.16 (safety belts, harnesses, tail lines and lifelines), 23-1.17 (life nets), 23-1.24 (work on roofs), and 23-5.3, 5.4, 5.5, 5.6, and 5.7 (various types of scaffolds), it must be dismissed as against all defendants because these provisions either are too general to support a § 241(6) claim or are simply inapplicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
JF demonstrated that it did not supervise and control plaintiff's work or the area of the work site in which plaintiff's accident occurred, and therefore cannot be held liable for plaintiff's injuries under Labor Law § 200 or common-law negligence principles. The record demonstrates that Marangos, plaintiff's employer, which pursuant to its contract with JF was responsible for site safety, was in charge of all aspects of the work at issue, including safety.

De Oleo v Charis Christian Ministries, Inc.
May 16, 2013
Appellate Division, First Department
Plaintiff fell from the roof of a church owned and/or occupied by defendants while painting a protective sealant on the roof.  The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
Labor Law § 240(1) (DRA)
The First Department held that plaintiff’s testimony that he was employed by the roof contractor as a “helper” and that he was paid $80 daily for his labor was sufficient to qualify him for the protections of § 240(1).  Although plaintiff testified he lost his balance at the roof’s edge after painting himself into a corner, he also testified he was not provided with any safety device to prevent his fall and defendants failed to refute said testimony.  Defendants’ protective barrier argument was speculative and depended on unsubstantiated factual assumption.  Further, defendants failed to establish that the church as akin to a one-to-two family dwelling exempting them from liability under the statute.
PRACTICE POINT:  Bonus points for effort to the defendant here but she had so little to work with.  Tried to prove plaintiff was not a proper plaintiff, but the evidence was he was paid, tried to prove no need for safety device, but the plaintiff fell, and even triad to call a church a single family home, all to no avail. 

Keenan v. Simon Property Group, Inc.
May 21, 2013
Appellate Division, First Department

            Plaintiff sustained injuries when he fell from a ladder while installing vinyl lining in a store front window frame.  This work was part of a renovation project being done at the behest of the store occupant, the Art of Shaving.  Art of Shaving contracted with a nonparty, M.D. Collins, to act as the general contractor of the renovation project.  Collins then subcontracted a portion of the work, specifically, the installation of the windows and doors to defendant Alert Glass.  Thereafter, Alert Glass subcontracted with Proper Construction, plaintiff’s employer, to install the glass.

            Plaintiff used a 12–foot aluminum A-frame ladder available at the work site to install vinyl lining around the edges of the storefront window.  He was working in a four-foot wide area between the storefront and a “wood barrier” that was constructed to surround the storefront and keep the public away from the work zone.  Because debris had been left in the enclosed work zone, plaintiff was precluded from opening up the A-frame ladder.  Instead, he kept the ladder in its folded state and alternated leaning it against the storefront window, or against a column to the storefront.  Only two feet of the folded ladder’s four feet were in contact with the ground while the folded ladder leaned against the storefront.  Plaintiff placed his tool bag at the base of the ladder, against its feet, to prevent the ladder from slipping.

            Over the course of three hours, plaintiff moved the ladder several times, and leaned it against the storefront.  The ladder appeared “wobbly” and “shook” at times.  Plaintiff had complained about the ladder’s instability to his supervisor, and asked for another ladder, but none was given. Just prior to falling, plaintiff had a half-used vinyl roll, which weighed approximately ten pounds, hanging on his shoulder.  He was “coming down the ladder,” using both hands to hold on, but his foot became “stuck” on the raised sharp points, or spikes, that were on the steps.  He tried to pull his shoe off the spikes, at which time he lost his balance and fell.

            Plaintiff then commenced this action alleging negligence and violations of Labor Law §§ 200, 240(1) and 241(6).

Labor Law § 240(1) (DRA)

            Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim as against defendants because the ladder was the only one available; could not be properly opened into an A-frame stance due to excess debris in his narrowly confined work space; he asked his foreman for another ladder, to no avail; and the ladder was unusual in that the step treads contained spikes which unexpectedly caught hold of his shoe as he was descending the improperly leaning ladder.  Contrary to defendants' contention that plaintiff was the sole proximate cause of his accident, the record shows that the ladder was inadequate for the nature of the work performed and the gravity-related risks involved.  Moreover, defendants did not show that another safety device was available, but went unused, that plaintiff failed to heed instructions on how to perform his assigned task of installing vinyl lining, or that the cause of plaintiff's injury was unrelated to the ladder's collapse.

PRACTICE POINT:  In this case the plaintiff did not have the option of opening the ladder and using it appropriately given the confines of the work space.  Combining the inappropriate safety device, the ladder which was apparently defective in that it caught the plaintiff’s shoe and the debris left around this case was going the plaintiff’s way from the start.  But thisis where you want to look carefully and see who left that debris around.  No one likes company half as much as a defendant who has a labor law case staring them in the face. 

Labor Law § 200 and Common-Law Negligence (VCP)

            The First Department ruled that that the Labor Law § 200 and common law negligence claims asserted against Alert Glass, were properly dismissed. As Alert Glass was not an owner, general contractor or statutory agent, and given that it also lacked authority to control the activity which produced the injury, it cannot be held liable under Labor Law § 200 and common law negligence for injuries that did not arise from Alert Glass's work.

 

Moncayo v. Curtis Partition Corp.
May 22, 2013
Appellate Division, Second Department

            Plaintiff worked at a school construction site.  He allegedly was injured while standing on the ground outside the school, when he was struck by a piece of sheetrock that had fallen from the third floor of the school building.  Another worker, Michael McNerny, had been working on the third floor, using a power saw to cut out a piece of sheetrock from the ceiling to facilitate the installation of a grill for the air conditioning system. McNerny was cutting the sheetrock into small pieces so he could handle each one himself without assistance, but in this instance, a small piece of sheetrock slipped from his hand and bounced off a window sill before falling through an empty window frame and striking plaintiff on the ground. Plaintiff, and his wife suing derivatively, alleged negligence and violation of Labor Law §§ 200, 240(1), and 241(6).

Labor Law § 241(6) (JAE)

            The Court affirmed the motion court’s grant of summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as that cause of action was predicated upon a violation of 12 NYCRR 23–1.7(a) (see 12 NYCRR 23–1.7 [a]).  That section requires suitable overhead protection in areas that are “normally exposed to falling material or objects” (12 NYCRR 23–1.7[a][1] ).  12 NYCRR 23–1.7(a)(1) is inapplicable to the facts of this case because the area where the accident occurred was not normally exposed to falling material or objects.

 

Carey v. Five Bros., Inc.
May 22, 2013
Appellate Division, Second Department

Plaintiff sustained injury while acting as a supervisor for a subcontractor on a construction site of a new supermarket.  As he returned from the building and walked toward his truck after delivering equipment and supplies to his crew, he fell partially through an open manhole atop a 10–foot–deep precast drainage vault. Although the structure of the drainage vault included a metal collar for the manhole cover, both the collar and the cover had been dislodged.  Absent from the record on appeal was any indication as to when, how, or by whom the collar and cover had been dislodged.  However, it was undisputed that a significant amount of snow had fallen in the week prior to the incident and that a significant amount of snow remained on the ground when plaintiff was injured, including in the area where the collar and manhole cover had been dislodged.

Plaintiff and his wife commenced an action against various entities, including the owners and lessees of the property, as well as the construction manager and certain contractors.  The plaintiffs asserted causes of action alleging, inter alia, common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). 

Plaintiffs moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), and defendants cross-moved.  The Supreme Court denied the motion and cross motions in their entirety.

Labor Law § 241(6) (JAE)

            The Second Department reversed the denial of defendants’ motion for summary judgment on the causes of action alleging a violation of Labor Law § 241(6).  A plaintiff asserting a cause of action under Labor Law § 241(6) must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specific positive command, and is applicable to the facts of the case.  None of the regulations on which the plaintiffs relied were applicable to the factual scenario presented here.

Labor Law § 200 and Common-Law Negligence (VCP)

            The Supreme Court properly denied those branches of the defendants’’ cross motions to dismiss the causes of action alleging common-law negligence and violation of Labor Law § 200. In cases where a worker at a job site is injured as a result of a dangerous or defective premises condition, a defendant moving for summary judgment must establish prima facie that it neither created the allegedly dangerous condition nor had actual or constructive notice of it.  Here, the Stop & Shop defendants and the Petrocelli defendants failed to establish prima facie that they neither created nor had constructive notice of the allegedly dangerous condition presented by the dislodged collar and manhole cover.

Bayo v. 626 Sutter Ave. Associates, LLC
May 28, 2013
Appellate Division, First Department

            Decedent Yusupha Tunkara was found dead at a construction site in a make-shift tool shed built by his employer, who was acting as the general contractor for the site. The autopsy revealed that decedent had died from carbon monoxide poisoning caused by a gasoline-powered generator in the shed. Decedent was a night watchman for Joy and was apparently trying to use the generator to power a portable heater to stay warm in the shed during his graveyard shift. The court denied the attempt of decedent's estate to recover damages for common law negligence, violation of Labor Law §§ 200 and 241(6).

Labor Law § 241(6) (JAE)

            The Court affirmed the dismissal of decedent’s estate’s Labor Law § 241(6) claim on the ground that decedent was working as a night watchman, as opposed to a construction laborer, at the time of the accident.  While affidavits were submitted that decedent had been seen cleaning, removing debris, and securing tools during his shift, at the time of he died, he was working as a night watchman.

Labor Law § 200 and Common-Law Negligence (VCP)

            The trial court properly dismissed the common-law negligence and Labor Law § 200 claims. Where, as here, the injury is caused not by the methods of decedent's work, but by a defective condition on the premises, liability depends on whether the owner or general contractor created or had actual or constructive notice of the hazardous condition. Defendant developer established prima facie that it did not create, nor did it have notice, of the hazardous condition by submitting its managing member's testimony that he did not recall seeing a shed during his occasional visits to the site, and that he had never seen the subject generator and heater. The testimony of the supervisor for the general contractor (and plaintiff’s employer) that it built the temporary shed for its own use, that it did not need the developer’s permission to do so, and that it owned the generator and heater supports a finding of lack of awareness on developer’s part.

Harasim v. Eljin Const. of New York, Inc.
May 28, 2013
Appellate Division, First Department

            In a decision without a lot of facts, plaintiff alleges that he slipped on a stairway in a building owned and maintained by defendant Madison.

Labor Law § 241(6) (JAE)

            The court found Industrial Code (12 NYCRR) § 23–1.7(e)(2), which protects workers from tripping hazards, inapplicable as the injured plaintiff did not allege that he tripped over “dirt and debris,” “scattered tools” or “sharp projections” in his work area; rather, he alleged that he slipped on a stairway in a building owned and maintained by defendant Madison.

            In contrast, the court determined that Industrial Code (12 NYCRR) § 23–1.7(d) was applicable because the permanent staircase where plaintiff's accident occurred was a “passageway” within the meaning of that provision.  Indeed, the staircase was the sole means of access to the work site, and it was not an open area accessible to the general public; however, it refused to grant partial summary judgment as to liability on that claim since it found triable issues of fact as to whether a slippery condition on the stairway actually caused plaintiff's accident.

            Take Away:  Remember, § 23-1.7(d) directs employers not to permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.  Ice, snow, water, grease and any other foreign substance which may cause slippery footing.

 

LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

 

Regulation § 23–1.30 requiring illumination “sufficient for safe working conditions” that is “no less than 10 foot candles”, is sufficiently specific to support of Labor Law § 241(6) claim regarding the obligation to keep work areas illuminated and free of debris (Giglio v St Joseph Intercommunity Hosp., supra; Murphy v Columbia University, 4 AD3d 200, 773 NYS2d 10 [1st Dept. 2004]; Gawel v Consolidated Edison Co. of N.Y., 237 AD2d 138 655 NYS2d 351 1st Dept. 1997]).  Although sufficiently specific, § 23–1.30 could not support claim where plaintiff did not sufficiently establish lighting where he fell was poor (Herman v St. John’s Episcopal Hosp., 242 AD2d 316, 678 NYS2d 635 [2d Dept. 1997]).

               Regulation § 23–1.30 held inapplicable where plaintiff’s accident did not involve insufficient lighting (Bennion v Goodyear Tire & Rubber Co., supra). Regulation § 23–1.30 may have been violated where plaintiff testified that illumination was “poor” and consisted only of street light 150 to 200 feet away (Hernandez v Columbus Centre, LLC, supra).  Even where affidavit that temporary light stringers provided at least 10 foot candles of illumination throughout project’s work area, plaintiff’s deposition testimony that area in which he worked was so dark that a person would not be able to read newspapers and that there was not artificial lighting in area where he worked held sufficient to raise question of fact whether § 23–1.30 was violated (Verel v Ferguson Electric Const. Co., Inc., supra). 

               Regulation § 23–1.33 deals with persons passing by construction operations and not to workers, is sufficiently specific to support a § 241(6) claim (Ozzimo v H.E.S., Inc., supra).  However, § 23–1.33(a) cannot support a claim under § 241(6) since that regulation does not mandate compliance with specifications (McMahon v Durst, 224 AD2d 324, 638 NYS2d 48 [1st Dept. 1996]).  Regulation § 23–1.33(d) applies to defined walkways and held inapplicable where plaintiff, who was carrying a 24-foot scaffold pick from a truck to the building was injured while walking over a 4 to 5 foot high pile of dirt (McGrath v Lake Tree Vil. Assocs., supra).

                 Regulation § 23–2.1 describes standards for storing material and equipment, is sufficiently specific to support a § 241(6) claim (Herman v St. John’s Episcopal Hosp., supra; but see Venezia v State, supra).  Regulation § 23–2.1 potentially applicable where plaintiff stepped onto piece of angle iron left by coworker (White v Farash Corp., 224 AD2d 978, 637 NYS2d 558 [4th Dept. 1996]).

                 Regulation § 23–2.1(a) requiring “building materials” be “stored in a safe and orderly manner” and that “materials piles” be stable and “so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare”, is sufficiently specific to support a § 241(6) cause of action (Aragona v State, supra; Rosado v Briarwoods Farm, Inc., 19 AD3d 396, 796 NYS2s 394 [2d Dept. 2005]).  Regulation § 23–2.1(a) only applies to material being stored (Buckley v Columbia Grammar and Preparatory, supra).  Regulation § 23–2.1(a) inapplicable where worker tripped on padeye welded to deck of work barge as he walked along corridor created by lumber and construction material (Aragona v State, supra); inapplicable to areas underneath stationary hoists (Gonzalez v Glenwood Mason Supply Co., supra); inapplicable where sledgehammer that struck plaintiff fell from log purlin rather than floor, platform or scaffold (Mahoney v Madeira Associates, supra); inapplicable where plaintiff’s injury caused by material being unloaded from truck (McCombs v Cimato Enterprises, Inc., 20 AD3d 883, 798 NYS2d 818 [4th Dept. 2005]); inapplicable where material on which plaintiff tripped was in use and not stored, was single item and not “material pile” and roof where accident occurred was not “passageway, walkway, stairway or other thoroughfare” (Castillo v Starrett City, Inc., supra); inapplicable where truck bed on which plaintiff fell does not constitute “passageway, walkway, stairway or other thoroughfare” (Cafarella v Harrison Radiator Div. of General Motors, supra).

               Regulation § 23–2.1(a)(1) requiring building materials be stored in safe and orderly manner and that material piles be stable and located so as not to obstruct passageway, walkway, stairway or other thoroughfare, inapplicable where accident occurred on loading dock or work area (Barrios v Boston Properties, LLC, 55 AD3d 339, 866 NYS2d 99 [1st Dept. 2008]); inapplicable where room measuring 18 feet by 20 feet not a passageway (Burkoski v Structure Tone, Inc., supra).

               Regulation § 23–2.1(a)(2) requiring that material and equipment may not be placed or stored so close to edge of floor, platform or scaffold as to endanger any person beneath such edge, potentially applicable where lumber stacked inches from edge of flatbed truck fell on plaintiff (Fontaine v Juniper Associates, 67 AD3d 608, 888 NYS2d 409 [1st Dept. 2009]).

               Regulation § 23–2.1(b) requiring debris to be handled so as not to endanger any person in the area of disposal, is sufficiently specific to support a § 241(6) cause of action in the Fourth Department, but inapplicable where worker injured after climbing on top of roof air conditioning unit to clear debris (Coleman v ISG Lackawanna Services, LLC, supra).  However, the First and Second Departments have consistently held § 23–2.1(b) will not support a § 241(6) cause of action (La Veglia v St. Francis Hospital, 78 AD3d 1123, 912 NYS2d 611 [2d Dept. 2010]; Parrales v Wonder Works Construction Corp., supra; Madir v 21-23 Maiden Lane Realty, LLC, supra; Quinlan v New York, 293 AD2d 262, 739 NYS2d 706 [1st Dept. 2002]; Fowler v CCS Queens Corp., 279 AD2d 505, 719 NYS2d 270 [2d Dept. 2001]; Mendoza v Marche Libre Associates, 256 AD2d 133, 681 NYS2d 517 [1st Dept. 1998]).

 

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Labor Law Pointers
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David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman

Associate Editor
Marc A. Schulz

Labor Law Team

            David R. Adams, Team Leader                                              Steven E. Peiper
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            Dan D. Kohane                                                                       Cassandra A. Kazukenus
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            Michael F. Perley                                                                   Jennifer A. Ehman
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            V. Christopher Potenza                                                          Marc A. Schulz
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