From the Editor:
Do you have a situation, we just love situations. Slim month for labor law decisions, but there are some of interest to be considered. In Kajo the second department addressed a motion to renew based on the Runner decision. The court held that while Runner allows application of 240(1) where the object does not actually fall, it still does require that “harm flows directly from the application of the force of gravity to the object”. It is not enough that the object causing the injury be suspended and cause the injury but it actually needs to have the force of gravity directly cause the harm.
In Griffiths the 241(6) cause of action was dismissed by the First Department because the item the plaintiff was charged with removing, ice, was what caused the plaintiff to fall. Logical, appropriate and straight forward. The plaintiff can’t claim that the violation was due to the existence of ice when the entire reason he was there was to remove the ice to eliminate the problem.
As we slide into fall it seems as if the weather has just now realized it is summer. Huge stack of firewood on the back porch and I am just itching to start a fire, and it suddenly gets warm out. Have put on a few of our training seminars for the some of our carrier partners in the past few weeks, we are always available for training on Labor Law, Risk Transfer or any other topic of interest, call or email if you are interested. No good pictures this month, sorry, will see if I get any for next month’s edition.
As always please feel free to pass this newsletter along to anyone you think would like it, and if you have had it passed on to you and you would like to receive it just let me know and I will add you to the distribution list.
That is about all I have for this month, enjoy and we will see you next month.
David
David R. Adams
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
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Phone: 716.849.8900
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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.
DePaul v NY Brush LLC
September 11, 2014
Appellate Division, First Department
DePaul allegedly was walking across a wooden plank that broke underneath him in an area of the exterior parking lot where the concrete subcontractor, Ruttura & Sons Construction Co. (“Ruttura & Sons”), had graded the ground in preparation for pouring concrete. DePaul took photos depicting three planks lined up end-to-end but unconnected. The job superintendent and site safety manager of defendant/third-party plaintiff Holt, the general contractor, admitted the photos showed wet and rotten planks. The Holt employees denied that Holt placed the planks there and testified they did not see any dangerous condition on the site before the accident. However, DePaul testified he had seen planks there for three weeks preceding his accident.
The trial court granted Holt and defendants/third-party plaintiffs Pepsi Cola and NY Brush (collectively “Defendants”) motion to dismiss the Labor Law §§ 241(6) claims, denied the motion with respect to the Labor Law § 200 and common-law negligence claims against them, and denied Defendants’ motion for summary judgment on their contractual indemnification claim against defendant/third-party defendant Ruttura & Sons, who also moved to dismiss the contractual indemnification claim. The trial court granted also granted Ruttura & Sons’ motion to dismiss the contractual indemnification claim.
With regard to the Labor Law § 241(6) claim, the court began by addressing the alleged violation of § 23-1.7(e)(1). It found that the accident occurred in an open working area, notwithstanding evidence that workers traversed the plank to get from the street to the job site.
The court also found no violation of § 23-1.11(a). This provision states: “The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contain any defects . . . which may impair the strength of such lumber for the purpose for which it is to be used.” In this case, while the plank on which DePaul slipped qualified as dimensional lumber under the regulation, it failed to meet the other specified criteria: it was not used in the construction of equipment or a temporary structure, and no equipment or temporary structure required by Part 23 has been identified by plaintiff.
Referencing the Court of Appeals decision in Joblon v. Solow, the court found that a plank failed to meet even the liberal definition of “structure” contained there. DePaul conceded the lumber was not joined together, and photographs of the location show only loose planks. Simply put, nothing had been constructed from the planks so as to come within the ambit of the regulation.
Labor Law § 200 and Common-Law Negligence (VCP)
Defendants did not dispute that DePaul's injuries arose from a dangerous condition (a wooden plank that broke as he was walking across it), but failed to demonstrate they did not have constructive notice of that dangerous condition. Holt conducted regular inspections of the whole site, and the site safety manager would have inspected the subject area about an hour before DePaul fell. Further, DePaul testified that he had seen planks there for three weeks preceding his accident, and the defects observed in the planks would tend to be longstanding. This evidence raises triable issues of fact concerning Holt's constructive notice. Defendants Brush and Pepsi also failed to demonstrate that they neither created nor had actual or constructive notice of the dangerous condition that caused DePaul's injuries, since they do not point to any probative evidence on these questions.
Indemnity Issues in Labor Law (SEP)
The defendants’ also asserted claims for contractual indemnification against the concrete contractors Ruturra. In finding a question of fact, the Court first noted that Ruturra had a contractual obligation to keep its work areas free of debris and unsafe conditions. The incident occurred in an area where Ruturra had performed grading work and had previously installed rebar. This was enough, in the Court’s mind, to find a question of fact as to whether Ruturra had a duty to protect against the unsafe condition created by the wooden plank. The Court also pointed out that even if Ruturra was responsible; defendants were still not entitled to contractual indemnification with issues of their own negligence remaining in doubt.
Best v Tishman Constr. Corp. of N.Y.
September 18, 2014
Appellate Division, First Department
Best testified that she tripped over an electrical cord in an area she described as a small hallway or corridor. Defendants moved to dismiss the Labor Law § 241(6) claim, arguing the accident occurred in an open working area rather than a passageway, as well as the § 200 and common-law negligence claims, arguing that they did not exercise supervisory control over the work. Defendants also moved for summary judgment on their third-party claim for contractual indemnification against Solar, who moved to dismiss the third-party complaint.
The trial court denied defendants’ motion on the § 241(6) claim, granted their motion to dismiss the § 200 and common-law negligence claims, and denied both defendants’ and Solar’s respective motions on the third-party claim for contractual indemnification.
In affirming the trial court, the First Department found that defendants’ motion for summary judgment dismissing Best’s cause of action under Labor Law § 241(6) was properly denied. Defendants failed to demonstrate that 12 NYCRR 23-1.7(e)(1) was inapplicable to this case, given plaintiff’s testimony that the she tripped over the electrical cord in the passageway. Also, contrary to defendants’ contention that the accident occurred in an open working area rather than a passageway, plaintiff and a Solar supervisor described the area as a small hallway or corridor. Defendants further failed to show that the cord did not constitute scattered materials for purposes of 12 NYCRR 23-1.7(e)(2). Contrary to defendants’ argument, the evidence did not show that the cord was not left there by another trade that had departed before the accident occurred.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department ruled that the trial court properly granted summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action to the direct defendants (the project's owner and construction manager) as they did not exercise supervisory control over the work.
Indemnity Issues in Labor Law (SEP)
Defendants also moved for contractual indemnification against third-party defendant Solar. The Court ruled that where, as here, defendants established themselves free of negligence (as evidenced by the dismissal of the § 200 claim), it followed that they had also established their entitlement to a conditional order of indemnity. As the only claim remaining against defendants was Labor Law § 241(6), defendants were only potentially statutorily liable. All such awarded damages are recoverable through the indemnification protections of the trade contract.
Griffiths v FC-Canal, LLC
September 18, 2014
Appellate Division, First Department
Griffiths allegedly was injured when he slipped and fell on ice he was removing from the top floor of a hotel under construction. Defendant FC-Canal owned the property, and defendant Tritel was the general contractor. Tritel entered in a subcontract for concrete superstructure work with Griffiths’ employer, nonparty IBK. Section 2.02 of the FC-Canal/Tritel contract states the “General Contractor shall perform and furnish, or cause to be performed and furnished all labor, supervision . . . and all other requirements of governmental agencies including . . . winter and inclement weather protections.
The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 241(6), 200 and common-law negligence claims, and denied plaintiff’s cross-motion for partial summary judgment on the issue of liability.
With regard to Labor Law § 241(6), the claim was properly dismissed insofar as it was predicated on 12 NYCRR 23-1.7(d) since Griffiths slipped on the very condition he was charged with removing.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department held that the trial court properly dismissed Griffiths’ Labor Law § 200 claim as he slipped on ice that his supervisor had instructed him to remove. The ice was a dangerous condition that Griffiths was directed to remedy and as such, he cannot recover under Labor Law § 200 since the condition for which he would hold defendants accountable was the exact condition he had undertaken to remedy.
Further, there is no evidence that Tritel, the general contractor, supervised and controlled Griffiths’ work. Although Griffiths alleged that “some guy from another company” directed his supervisor to remove the ice in order to put down cement, he testified that the only person who gave him any instruction over his work was his supervisor. This general supervisory authority does not rise to the level of supervision or control necessary to hold the general contractor liable for Griffiths’ injuries under Labor Law § 200.
Kajo v E.W. Howell Co., Inc.
September 10, 2014
Appellate Division, Second Department
Kajo was allegedly injured while he and others were using ropes to pull a large, heavy panel handing from a crane through an open wall of a fourth floor building under construction. The trial court denied Kajo’s motion for summary judgment on his Labor Law § 240(1) claim, and granted defendants’ cross-motion to dismiss that claim. The Second Department held that Kajo’s injuries did not arise from an elevation-related risk within the meaning of the statute.
After the Second Department heard Kajo’s appeal, the Court of Appeals issued the Runnerdecision. Consequently, Kajo moved for leave to renew its prior motion, and the trial court denied the motion.
The Second Department affirmed the trial court’s decision denying Kajo’s motion for leave to renew because Kajo failed to establish that Runner v New York Stock Exch., Inc. created a change in the law that would alter the trial court’s prior determination. In Runner the Court of Appeals held that even if the object did not fall on the plaintiff, the “relevant inquiry … is whether the harm flows directly from the application of the force of gravity to the object.” In the instant case, the object appears to have been suspended from a crane and being swung in through an opening in a building injuring Kajo. As there was no application of gravity to the object beyond swinging it into the building, Runner was not a change in the status of the law which would give rise to permitting the motion to be renewed, which requires a change in the law that would alter the outcome of the prior decision. Here, the court found that no such change in the status of the law existed and thus, the motion was denied.
PRACTICE POINT: The harm must flow directly from the application of gravity and not simply be a side effect of being struck by a suspended object. In addition, the required elements for a motion to renew were covered last month and I will include them here again. Copied directly from last month’s edition is the following:
“Also remember that a motion to renew must be based on new information or a change in the law while a motion to reargue is simply a claim that the court misapprehended the fact or the law. The denial of a motion to renew is appealable while the denial of a motion to reargue is not.”
Abelleira v City of New York
September 10, 2014
Appellate Division, Second Department
On the day of his accident, Abelleira was using a pneumatic pipe plug to pressure test a pipe that was 42 inches in diameter. According to his affidavit, he inspected the plug and “it appeared normal to me, although it was older and used.” He proceeded three to four feet into the pipe, inserted the plug into its interior, and inflated the plug “ever so slightly so I could check it for leaks.” Upon noticing several air bubbles on the plug, which suggested a leak, Abelleira called over his supervisor from Picone, who told him that the plug was defective and to discontinue using it. As soon as the supervisor stepped away from the pipe, the plug exploded without warning, propelling Abelleira into the air and onto an "I" beam, where he came to rest.
The trial court denied Abelleira’s motion for summary judgment regarding the Labor Law §§ 241(6), 200 and common-law negligence claims. The trial court sua sponte searched the record and awarded summary judgment to defendants dismissing the § 241(6) claim predicated on 12 NYCRR 23-9.2(a) and (b)(1).
In considering the § 241(6) claim, the Second Department found that the trial court properly denied that branch of Abelleira’s cross motion summary judgment, and properly, in effect, searched the record and awarded summary judgment to the defendants dismissing that cause of action.
In order to recover under Labor Law § 241(6), a plaintiff must plead and prove a violation of a specific provision of the Industrial Code, which sets forth a specific standard of conduct and not simply a recitation of common-law safety principles. In this case, the two Industrial Code provisions relied upon by Abelleira, 12 NYCRR 23-9.2(a) and (b)(1), were inapplicable to the facts. Moreover, with respect to the alleged violation of 12 NYCRR 23-9.2(b)(1), the provision is merely a general safety standard that does not give rise to a nondelegable duty.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department held that the Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment on the causes of action alleging common-law negligence and a violation of Labor Law § 200. When a claim involves the manner in which the work is performed, meaning it arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor for common-law negligence or a violation of Labor Law § 200 is unavailable unless it is shown that the defendant had the authority to supervise or control the performance of the work. Here, the plaintiffs failed to establish, prima facie, that the defendants had the authority to supervise or control the performance of the work being performed at the time of the accident so as to render them liable for the accident under a theory of common-law negligence or pursuant to Labor Law § 200.
Further, when a claim arises out of an alleged dangerous premises condition, a property owner or general contractor may be held liable in common-law negligence and under Labor Law § 200 when the owner or general contractor has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it. Here, the plaintiffs failed to establish, prima facie, that the defendants either created or had actual or constructive notice of an allegedly dangerous condition constituting a proximate cause of the subject accident.
Treile v Brooklyn Tillary, LLC
September 17, 2014
Appellate Division, Second Department
Treile allegedly was injured while he and his coworkers were unloading rebar from a flatbed truck in the course of his employment on a construction project managed by defendant Leviathan, at a work site owned by defendant Brooklyn Tillary (“Tillary”). Following the issuance of a partial “stop work” order by the NYC Department of Buildings earlier on the day of the accident due to hoisting in an unsafe manner, Treile and his coworkers were prevented from using a crane to lift the bundles, which allegedly weighed approximately 8,000 to 10,000 pounds each, and measured approximately 40 feet in length. Instead, the workers began using crow bars to roll the bundles of rebar off of the wooden “four-by-four” planks on which they were resting on the bed of the truck, which was 4 or 5 feet above the ground. As one of the bundles began to fall from the truck, the shift in weight allegedly caused one of the wooden planks to catapult Treile approximately 15 feet in the air from the bed of the truck, where he had been standing on that plank. He allegedly fell 19 to 20 feet to the ground, and was immediately thereafter struck by the same four-by-four plank when it fell onto his back.
Treile moved for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against Tillary and Leviathan, and they cross-moved. The trial court granted those branches of the Tillary and Leviathan’s cross motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1) and for violations of Labor Law § 241(6) insofar as predicated on alleged violations of 12 NYCRR 23-1.32, 23-6.2(c) and (d), 23-6.1(j)(1), 23-2.1(a)(2), and 23-8.2(c)(3) insofar as asserted against them, and denied the plaintiff’s motion.
Where, as here, the relevant inquiry whether the harm flows directly from the application of gravity to the object, the Fourth Department held the launch of Treile from the truck along with the wooden plank upon which he was standing flowed directly from the application of the force of gravity to the bundle of rebar. Further, the elevation differential between the flatbed truck and the ground was significant given the weight of rebar, and the amount of force they were capable of generating, “even over the course of a relatively short descent.”
The Fourth Department held Treile’s evidence established prima facie that Tillary and Leviathina violated § 240(1) by failing to provide an enumerated safety device, such as the hoist that had been provided earlier in the day to secure the bundle of rebar as it was being lowered, and that the failure to provide an appropriate safety device was a proximate cause of the injuries.
PRACTICE POINT: Runner rears its ugly head again. The common principle is that, as discussed above, the “relevant inquiry…is...whether the harm flows directly from the application of the force of gravity to the object”; here, where the object is the bundle of rebar which launched the plaintiff on a decidedly sub orbital trajectory. Unlike the Kajo case above where it was not the force of gravity which caused the injury, here (apologies to King Kong) it was gravity that injured the plaintiff.
The court did not address the trial court’s findings on the § 241(6) claim. While it is not clear why the claim was not addressed, the court did note at the end of the decision that the remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.
Labor Law § 200 and Common-Law Negligence (VCP)
With respect to the causes of action alleging common-law negligence and a violation of Labor Law § 200, the Tillary defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject accident was caused by the means and methods of the Treile’s work, that his work was directed and controlled by his employer, and that it had no authority to exercise supervisory control over his work. In response, Treile failed to raise a triable issue of fact with respect to Tillary's authority to exercise such supervisory control.
With respect to Leviathan, however, Treile’s deposition testimony and affidavit raised a triable issue of fact as to whether the “supervisor” who was responsible in part for directing the workers to continue unloading the bundles manually following the issuance of the partial stop work order was one of Leviathan's employees. Accordingly, the trial court should have denied that branch of the cross motion for summary judgment dismissing the common-law negligence and Labor Law § 200 cause of action insofar as asserted against Leviathan.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
Regulation § 23–9.7 containing concrete specifications for brake maintenance, loading, and seating in motor vehicles, held inapplicable to an accident involving a Bobcat; a type of forklift (Modeste v Mega Contracting, Inc.., 40 AD3d 255, 835 NYS2d 156 [1st Dept 2007]). Regulation § 23–9.7 prescribing safety practices to be observed by construction workers with respect to trucks, held inapplicable where record clearly established that dump mechanism on truck was not being operated within meaning of the rule at the time plaintiff injured, who was not working under the raised body of the dump truck and there was no evidence that dump truck was being loaded in excess of its rated capacity (Bailey v Irish Dev. Corp., 274 AD2d 917, 711 NYS2d 241 [3d Dept 2000]).
Plaintiff raised an issue of fact as to whether defendant violated § 23–9.7 where plaintiff struck by other workers in truck who fell forward when truck suddenly stopped (Bloomfield v General Elec. Corp., 198 AD2d 655, 603 NYS2d 606 [3d Dept 1993]).
Regulation § 23–9.7(a) requiring brakes of truck to be maintained so as to “hold” the vehicle also addressed ability of brakes to bring moving vehicle to a stop, held potentially applicable as to whether failure of truck’s brakes while delivering asphalt to county project was caused by inadequate maintenance, in violation of the regulation, and factual issue as to driver’s comparative fault precluded county for obtaining summary judgment on § 241(6) claim (Duffina v County of Essex, 111 AD3d 1035, 974 NYS2d 645 [3d Dept 2013]).
Regulation § 23–9.7(c) providing that “[t]rucks shall not be loaded beyond their rated capacities and all loads shall be trimmed before the trucks are moved” and “[l]oads that are apt to become dislodged in transit shall be securely lashed in place”, held sufficiently specific to support a § 241(6) cause of action, and applicable to plaintiff’s claim that scissor lift was being used as truck when accident occurred (Borowicz v International Paper Co., 245 AD2d 682, 664 NYS2d 893 [3d Dept 1997]).
Regulation § 23–9.7(d) providing that trucks shall not be backed or dumped where persons are working unless guided by a person stationed so that he or she can see both truck driver and spaces behind truck, held applicable where evidence that cement truck that struck plaintiff backed into work area without being guided because such evidence sufficiently raised issue of fact as to whether violation was a proximate cause of plaintiff’s injury (Erickson v Cross Ready Mix, Inc., 75 AD3d 524, 906 NYS2d 54 [2d Dept 2010]).
Regulation § 23–9.7(d) held inapplicable to accident in which “rough terrain” forklift struck plaintiff while backing up (Fitzherald v New York City School Constr. Auth., 18 AD3d 807, 796 NYS2d 694 [2d Dept 2005]); inapplicable to § 241(6) action arising out of operation of forklift because safety regulations regarding forklifts is specifically set forth in § 23-9.8 (Scott v American Museum of Natural History, 3 AD3d 442, 771 NYS2d 499 [1st Dept 2004]).
Regulation § 23–9.7(e) requiring properly constructed seat, held sufficiently specific to support a § 241(6) cause of action, but only applies in situations where vehicle being used for transportation at the time of plaintiff’s accident (Vargas v State, 273 AD2d 460, 710 NYS2d 609 [2d Dept 2000]). At trial, plaintiffs presented expert testimony that the method of transportation used on the day of the accident did not comply with regulation § 23–9.7(e) and defendants presented expert testimony to the contrary; jury returned verdict in favor of plaintiffs held not against the weight of the evidence, i.e. it cannot be said that “the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Clause v E.I. Du Pont De Nemours & Co., 284 AD2d 966, 726 NYS2d 317 [4th Dept 2001]).
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Labor Law Pointers
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David R. Adams
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V. Christopher Potenza
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Jennifer A. Ehman
Associate Editor
Marc A. Schulz
Labor Law Team
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V. Christopher Potenza Marc A. Schulz
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