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Labor Law Pointers - Volume III, No. 2

Labor Law Pointers

Volume III, No. 2
Wednesday, December 4, 2013

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

From the Editor:   Welcome to the December edition of Labor Law Pointers.  Happy holidays to all of our readers.  This season, and specifically Thanksgiving, always brings up the question of what we are thankful for.  I am most thankful for my wife and family, our health and the time we spend together.  Always present in anyone who works, as we all do, in the pressure of litigation, is the gratitude for the support and help we get from those with whom we work.  That is not in any way restricted to solely those who go to work in the same office these days.  I spend large portions of my day on the phone or emailing with other attorneys and claims professionals discussion strategy and opportunities in the defense of Labor Law cases.  Thanks you all.  I want also to take this opportunity to thank those with whom I have the privilege of producing this newsletter.  Readers I am sure appreciate the amount of work involved defending Labor Law cases and in producing this type of publication.  Our Labor Law team does it every month and does it well.

            This edition has several interesting cases including one that has nothing at all to do with Labor Law.  I have included it because it rings to me as being important to any attorney or claims professional involved in litigation involving catastrophic injuries and point out a potential pitfall in trying these cases. 

            I again invite anyone to call or email at any time with questions involving Labor Law or any topic for that matter.  We love situations, and anyone who wants to play stump the editor please feel free to ask, I love working out the issues on these cases.  We are still looking for a date to put on our next webinar and hope to have a date nailed down soon for a webinar early in the New Year.   

            My daughter, who has a bit of an obsession with Paris, sent me this picture after realizing that I had put pictures of the Empire State Building in the newsletter.  Once again, you will see no safety devices at all.  Notice that they are painting which is an enumerated activity under 240(1).  The sole proximate cause defense would fall flat here, no appropriate safety devices available, no one instructed to use them.  I never forget that there is a real reason the Labor Law exists, personally all I want to see is culpable conduct of the plaintiff added as an affirmative defense.  Enjoy the remainder of the holidays and we will see you in next year.  

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.

 

Murphy v Tahoe Dev. Corp.
November 6, 2013
Appellate Division, Second Department

Plaintiff allegedly was injured when one of the rungs of the wooden A-frame ladder he was using broke, causing him to fall to the ground.  Plaintiff commenced this Labor Law § 240(1) action against defendants, and moved for summary judgment.  The trial court granted plaintiff’s motion. 

Labor Law § 240(1) (DRA)
 
The Second Department held plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating he was injured when one of the rungs of the wooden A-frame ladder he was using broke, causing him to fall.  Defendants failed to submit evidence in admissible from sufficient to raise a triable issue of fact as to whether plaintiff’s actions were the sole proximate cause of his injuries.

PRACTICE POINT:  Not a lot to say about this one, the safety device, a ladder, broke causing the plaintiff to be injured by the effects of gravity and thus, the safety device was insufficient for its intended purpose.  Creativity in defending these cases has its bounds as we all know. 

 

Klimowicz v Powell Cove Assoc., LLC
November 6, 2013
Appellate Division, Second Department

Plaintiff, a bricklayer employed by third-party defendant, allegedly injured his right shoulder when, while working on an elevated scaffold at a construction site, his right foot fell through an opening created by missing planks and he grabbed onto overhead planks to stop himself from falling.  Plaintiff commenced this action, alleging violations of Labor Law §§ 200 and 241(6) predicated upon 12 NYCRR § 23-5.1(c), § 23-5.1(e)(1) and § 23-5.3(f).  The trial court granted defendants/third-party plaintiffs and third-party defendant’s motions for summary judgment dismissing plaintiff’s complaint, and plaintiff appeals. 

Labor Law § 241(6) (JAE)

12 NYCRR 23-5.1(c) [scaffold must bear four times the maximum weight required, and must have adequate horizontal and diagonal bracing to prevent any lateral movement]; 23-5.1(e)(1) [scaffold planks shall extend not less than six inches beyond any support nor more than 18 inches beyond any end support; scaffold planks shall be laid tight and inclined planking shall be securely fastened in place]; and 23-5.3(f) [every scaffold shall be maintained in good repair and free of defect] set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action

Defendants did not establish either that those Industrial Code provisions were inapplicable to the facts of this case, or that the alleged violation of those provisions was not a proximate cause of the damages alleged.  However, 12 NYCRR 23-5.1(f) was seemed too general to support the cause of action alleging violations of Labor Law § 241(6).

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

Where a plaintiff's claim arises out of alleged defects or dangers in the methods or materials of the work, to prevail on a Labor Law § 200 cause of action, the plaintiff must show that the defendant had the authority to supervise or control the performance of the work.  A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed.  The right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence.

The Second Department ruled that the moving defendant and third-party defendant failed to make a prima facie showing that they did not have the authority to supervise or control the manner in which the plaintiff's work was performed, and as such their motions for summary judgment dismissing the cause of action alleging violations of Labor Law § 200 should have been denied, regardless of the sufficiency of the opposition papers.

 

Matthews v 400 Fifth Realty LLC
November 7, 2013
Appellate Division, First Department

Plaintiff was allegedly injured when a metal grate fell on him while working in the elevator shaft of a building owned by defendant 400 Fifth Realty (“400 Fifth”).  400 Fifth retained defendant Paravini as the construction manager, who subcontracted with nonparty Fujitec Serge, plaintiff's employer, to install the elevators in the building, and with defendant GC Ironworks (“GCI”) to install, among other things, iron-grate platforms in the elevator shafts.

The trial court denied plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim, and granted defendants’ motion to dismiss the Labor Law § 200 and common-law negligence claims to the extent asserted against Paravini.

Labor Law § 240(1) (DRA)

The First Department held that the evidence shows plaintiff’s injuries flowed directly from the application of the force of gravity to the grate, and were caused by defendants’ failure to adequately secure the grate so as to prevent it from falling.  GCI’s foreman testified that the incident occurred while he was setting up the grates to prepare them for welding, and that the grate fell because it had not yet been welded in place.

The First Department rejected defendants’ argument that the falling grate was an inherent risk involved in the work because the grate was part of the work of the construction project plaintiff was engaged, and required securing “for the purposes of the undertaking.”  In searching the record, the First Department granted plaintiff summary judgment on his § 240(1) claim, and reversed the trial court’s decision to the extent it required plaintiff to prove the object fell while being hoisted or secured to prevail on his claim because “‘falling object’ liability under the statute is not limited to cases in which the falling object is in the process of being hoisted or secured.”

PRACTICE POINT:  The important point to be retained from this case is that the object which falls, causing injury to the plaintiff, no longer needs to be in the process of being hoisted or secured as it once was.  The claim that metal grates plummeting down elevator shafts is a risk inherent in working on construction sites may have taken it a bit too far.  If that is an inherent risk, then a plaintiff simply falling off a ladder would have to be also and the labor law would lose a lot of its teeth. 

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

The First Department reversed the trial court and denied summary judgment to the general contractor, Paravini, on the Labor Law § 200 and common-law negligence claims, ruling that the evidence indicates that Paravini managed the day-to-day activities on the job site, and exercised at least some control over the coordination of GCI's and Fujitec's work, enabling it “to avoid or correct [the] unsafe condition” that arose when both subcontractors were working simultaneously in the same elevator shaft.

VanName v Rochester Gas & Elec., Inc.
November 8, 2013
Appellate Division, Fourth Department

Plaintiff’s employer had been hired to install a water main and plaintiff, a pipe layer, assisted his coworker, an excavator operator, in digging a trench.  An employee of defendant RG&E had marked the location of the underground electric line by placing flags directly above the line.  On the morning of the incident, plaintiff attempted unsuccessfully to locate the electric line with the aid of that marker in the area where they were digging.  Plaintiff directed the excavator operator where to dig, and allegedly sustained an electric shock and resultant injuries when the bucket of the excavator struck the electric line as he stood nearby.

Plaintiff commenced this common-law negligence and Labor Law §§ 241(6) and 200 action.  Defendant moved for summary judgment dismissing the amended complaint against it.  The trial court granted that part of the motion with respect to the Labor Law claim but denied that part of its motion with respect to the common-law negligence and Labor Law § 200 claims.

Labor Law § 241(6) (JAE)

Affirming the trial court, the Fourth Department found that defendant’s motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-1.13 (b) and (d) was properly granted.  Section 23-1.13 does not “apply to or in connection with operations conducted by” employers, owners, contractors and their agents “subject to the jurisdiction of the Public Service Commission” (12 NYCRR 23-1.13 [a]; see Public Service Law § 5 [1] [b]).  As defendant RG&E was subject to the jurisdiction of the Public Service Commission, the provision did not apply.  

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

The Fourth Department held the trial court properly denied that part RG&E’s motion with respect to the common-law negligence and Labor Law § 200 causes of action, holding that even assuming, arguendo, that defendant met its initial burden of establishing that it did not create the allegedly dangerous condition, plaintiffs raised a triable issue of fact through plaintiff's deposition testimony that RG&E did not accurately mark the location of the underground electric line.  Further, given the conflicting testimony submitted by RG&E concerning the circumstances of the accident, RG&E did not meet its burden of establishing as a matter of law that plaintiff's alleged negligence constituted an intervening, superseding cause of the accident.

 

Diaz v 5-01-5-17 48th Ave., LLC
November 14, 2013
Appellate Division, Second Department

Plaintiff allegedly was injured when he fell from an unsecured ladder that collapsed while he was performing roofing work on a construction project.  Plaintiff filed this Labor Law § 240(1) action, and moved from summary judgment.  Defendants’ argued plaintiff was the sole witness to the incident and thus, his motion should be denied.  The trial court denied plaintiff’s motion, finding issues of fact as to defendants’ ownership or management of the premises.

Labor Law § 240(1) (DRA)

The Second Department found no triable issues of fact existed as to defendants’ ownership or management since the parties entered into a written stipulation during the pendency of the summary judgment motion, which was “so ordered” by the court, in which defendants conceded their involvement with the property.  Further, plaintiff identified three other witnesses in his response to defendants’ combined discovery demands and even if plaintiff had been the sole witness to his incident, however, summary judgment would not be precluded.

Further, plaintiff satisfied his burden of establishing that he was hired by a contractor and was suffered or permitted to work on the premises, such that he was entitled to the protections of the Labor Law.  Thus, plaintiff’s motion should have been granted.

PRACTICE POINT:  So here the plaintiff provided proof that he was “so employed” and thus, a person to whom the protections of the Labor Law were provided.  In addition, this case speaks to the proposition that a plaintiff can recover on an un-witnessed accident.  Gone are the days where a question of fact could be established solely because the plaintiff was the only witness to an accident.

 

Hoffman v SJP TS, LLC
November 14, 2013
Appellate Division, First Department

Plaintiff, a glazier, was provided with a scissor lift to perform caulking in a glass lobby at a height of approximately 35 feet.  The workers could not place the lift directly adjacent to the windows because of the V-shape portion of the lobby, leaving a three-foot gap between the workers and their work. 

To caulk the windows, plaintiff needed to lean out over the lift’s railing, place his hand on the glass windows, and operate the caulking gun with the other.  In performing his task, he fell over the railing to the ground.  Plaintiff filed this Labor Law § 240(1) action, and move for summary judgment.  Defendants’ argued triable issues of fact exist as to whether plaintiff was the sole proximate cause of the incident.  The trial court denied plaintiffs’ motion for summary judgment.

Labor Law § 240(1) (DRA)

The First Department reversed and granted plaintiff’s motion, noting that while there was no defect in the device, it was clearly inappropriate for the task at hand in light of the configuration of the building.  Further, while plaintiff was wearing his safety harness, there was no appropriate anchorage point to which the lanyard could have been tied-off.

PRACTICE POINT:  The appropriateness of a safety device for the task at hand is not always obvious.  Here, the lift was seemingly in perfect working order but simply, in the opinion of the court, inappropriate for the task due to the configuration of the building.  This is why I always recommend retaining an expert to opine as to the appropriateness of the safety device prior to filing your summary judgment motion. 

 

Duffina v County of Essex
November 14, 2013
Appellate Division, Third Department

Plaintiff, a dump truck driver, was assigned to haul asphalt to a location where the paving operations started towards the top of one particular slope of a road and continued in a downward direction.  As plaintiff approached the top of the hill with his second haul of the day, the brakes of his tri axle dump truck stopped working, causing it to barrel past the construction site and continue the down the hill.  Plaintiff sustained serious injuries after jumping from the truck, which ultimately ran off the road.

Defendant County of Essex (“County”) contracted with Graymont Materials, Inc. for the supply of asphalt.  Graymont contracted with Beaudin Brothers Trucking, plaintiff’s employer, to transport and deliver the asphalt.  Plaintiff commenced suit against the County alleging negligence and a violation of Labor Law § 241(6) based on 12 NYCRR 23-9.7 (a).  The County filed a third-party action against Graymont and Beaudin Brothers seeking both common-law and contractual indemnification. 

Plaintiff claimed the County was negligent in permitting public traffic on the road while the construction was ongoing.  The County filed motions seeking dismissal of the complaint and judgment on its contractual indemnification claim against Graymont, arguing that plaintiff failed to provide sufficient evidence to establish any negligence on its behalf because the accident was caused by plaintiff's improper operation of his vehicle, rather than any negligence on its part.  The trial court denied the County’s motions, and granted Graymont’s motion dismissing the County’s indemnification claim.  The County appeals the trial court’s decision.

Labor Law § 241(6) (JAE)

Plaintiff alleged the County violated 12 NYCRR 23-9.7 (a), which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.”  While the County did not dispute that this provision was sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argued that the regulation was not applicable to these circumstances.

Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace,” the court could not agree.  Although the regulation speaks in terms of the ability of the brakes to “hold” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered.   In turn, the court found that the language of the regulation addressed not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop.  It opined that any other interpretation would not only lead to an incongruous result, but would also be inconsistent with the purpose of the regulation, specifically, and the Industrial Code as a whole.

Furthermore, the court held that inasmuch as there was conflicting evidence as to whether the brake failure was caused by inadequate maintenance, there existed factual issues concerning whether the claimed violation was a proximate cause of plaintiff's injuries, as well as questions regarding his comparative fault.

Labor Law § 200 and Common-Law Negligence (VCP)
                                                                             
The County argued that plaintiff failed to provide sufficient evidence to establish any negligence on its behalf. With the exception of plaintiff's claim that the County was negligent in permitting public traffic on the road while the construction was ongoing, the Third Department agrees.  The crux of plaintiff's common-law negligence claim is that, in light of the steepness and grade of the relevant portion of the road, the County was negligent with respect to the manner in which it conducted the paving operations, including its decision to pave in a downward fashion and the manner in which it instructed asphalt to be loaded into the paver.  Plaintiff asserts that, as a result of such negligence, great stress was placed on the brakes of his truck, which ultimately caused them to fail.  

While the County oversaw the construction operations and, in so doing, determined the manner in which the paver would be operated and the method by which the asphalt would be dumped into the paver, the Third Department held plaintiff failed to submit any competent evidence, expert or otherwise, establishing that the work was being performed in an unsafe manner. Although certain witnesses characterized the portion of the road being paved as "steep," no evidence was presented to quantify the grade or slope of the road or to establish that it was unusually dangerous for the nature of the work or the manner in which it was being performed. Nor has plaintiff shown that the method by which the asphalt was delivered to the paver violated any industry-wide standards or accepted practices. Moreover, there is no evidence that plaintiff, or anyone else, complained to the County regarding the steepness of the slope or of any other unsafe condition with respect to the work being performed, and the proof submitted on the motion established that none of the other drivers of tri axle dump trucks encountered any problems performing tasks similar to plaintiff's. Thus, the Third Department found no proof that the County acted negligently with respect to its decisions concerning the manner in which the paving operations were being performed. 

With regard to its alleged negligence in permitting civilian traffic to continue while construction was underway, the County asserts that summary judgment in its favor is warranted because the accident was caused by plaintiff's improper operation of his vehicle, rather than any negligence on its part. However, there may be more than one proximate cause of an injury and it is of no consequence that the accident was not set in motion by any negligence on the part of the County. So long as it can be demonstrated that the decision to permit public traffic to continue during the paving operations was "a substantial factor in aggravating plaintiff's injuries, a cause of action may be upheld."

Moreover, plaintiff testified that, after his brakes failed, he swerved into the left-hand lane to avoid the paver and other construction vehicles parked in the right-hand lane, and then saw three cars coming towards him in that left-hand lane which were forced to pull off the road in order to avoid his vehicle. He further explained that the presence of these cars prevented him from driving his truck into a ditch in order to stop.  Viewing this evidence in a light most favorable to plaintiff and affording him the benefit of every positive inference, the Third Department held an issue of fact exists as to whether the alleged negligence of the County in permitting public traffic on Hurricane Road, while construction was ongoing, was a substantial factor in causing or exacerbating plaintiff's injuries.

Indemnity Issues in Labor Law (SEP)

The Third Department agreed with the County that dismissal of its contractual indemnification defense against Graymont was improper. The indemnification clause expressly incorporated into the contract between Graymont and the County provides that the former "shall defend, indemnify and hold harmless the County to the fullest extent allowed by law from and against any and all liability, suits, judgments, orders, causes of action, and claims . . . arising out of or in connection with [Graymont's] negligence and/or its performance or failure to perform this agreement."  Pursuant to the parties' agreement, Graymont was responsible for both furnishing the asphalt as well as delivering it to the County paving machines at the designated job site, and it is undisputed that the accident occurred during such delivery.  Accordingly, plaintiff's claims here clearly arose out of or in connection with Graymont's performance of the agreement, and the County is therefore entitled to summary judgment on its contractual indemnification claim against Graymont.

 

Cerverizzo v City of New York
November 19, 2013
Appellate Division, First Department

In a case with little facts, it appears plaintiff allegedly stepped into a hole and was injured by a dangerous condition at an excavation site.  After commencing this negligence and Labor Law action, he submitted affidavits asserting he both tripped and slipped although he previously testified at his deposition that he neither tripped nor slipped.  The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 200 claim as against defendant Yonkers Const. Corp. and the § 241(6) claim against all defendants.

Labor Law § 241(6) (JAE)

In affirming the dismissal of the § 241(6) claim, the court found that Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) [hazardous openings] was inapplicable, because the hole that plaintiff stepped into, as he described it, was not large enough for a person to fit through.  Sections 23-1.7(e)(1) and 23-1.7(d) [tripping hazards and slipping hazards] were inapplicable because plaintiff’s only testimony that he both tripped and slipped was contained in his affidavits, which were tailored to avoid the consequences of his prior deposition testimony that he neither tripped nor slipped.

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

The First Department overruled the trial court, and denied summary judgment to Yonkers Construction Corp. on plaintiff’s Labor Law § 200 claim.  Pursuant to Labor Law § 200, Yonkers failed to establish prima facie that it neither created nor had actual or constructive notice of the dangerous condition, allegedly created by an excavating company, that caused plaintiff's injury.  Yonkers’ own workers performed excavation in the area and were responsible for providing protection from excavation holes.  Yonkers’ argument that it did not exercise supervisory control over plaintiff’s work was inapposite, in light of the evidence that Yonkers created the dangerous condition.

 

Devito v Feliciano
November 26, 2013
Court of Appeals

Plaintiff allegedly was injured in a motor vehicle accident (“MVA”) in NYC after a van operated by defendant Feliciano and owned by Paragon Cable “rear-ended” the car plaintiff was a passenger in and her daughter was driving.  Plaintiff commenced this action against Feliciano and Paragon Cable, alleging that she sustained a “serious injury” under Insurance Law § 5102(d) as a result of the collision; fractures of her nose and back.

Hospital records the day of the collision indicated no head and facial trauma, and no ear, nose and throat (“ENT”) problems and no x-rays were taken.  Plaintiff complained of head, back and nasal pain in the following weeks.  Dr. Kacker, an ENT specialist, examined her one month after the collision, and exhibited no pain upon palpitation of her nose.  However, he referred her for a CT scan, which revealed a non-displaced fractured nose.  An MRI of her back two months after the collision revealed a compression fracture of the T12 vertebra.

Throughout discovery, plaintiff was examined by four defense physicians.  The case proceeded to trial, where medical records were admitted into evidence, including records indicating that about six months before the collision plaintiff had fallen and sustained a minor concussion and a fractured left wrist.  At trial, plaintiff volunteered that she had fallen a few times since the collision but did not mention any fall before the collision. 

Defendants declined to call any of the physicians who examined plaintiff.  In turn, plaintiff’s counsel requested a missing witness charge under PJI 1:75.  The trial court relied on Getlin v St. Vincent’s Hosp. & Med. Ctr. Of N.Y. (117 AD2d 707 [2d Dept 1986]) in denying plaintiff’s request because the defense physicians’ testimony “would be cumulative” to what plaintiff’s doctors said.  In Getlin, the Third Department ruled that a trial court properly refused to give a missing witness charge because the uncalled witness’s testimony would “have been merely cumulative of the testimony of the plaintiff’s treating physician and … experts.”

During summation, plaintiff’s counsel was permitted to argue the issue, stating “don’t you think if these doctors had something to tell you that could help their case, that could show my client didn’t suffer these injuries as a result of this accident, don’t you think they would be here?”  Defense counsel’s closing focused on “a thread of dishonesty” throughout plaintiff’s case, referencing her prior fall.

The jury returned a defense verdict, finding that the MVA was not a substantial factor in bringing about plaintiff’s nasal and T12 fractures.  The Appellate Division affirmed dismissal of plaintiff’s complaint, holding that plaintiff failed to satisfy the elements that are a prerequisite for receiving a missing witness charge, citing Getlin.  The Court of Appeals granted plaintiff leave to appeal.

An “uncalled witness” or “missing witness” charge instructs a jury that it may draw an adverse inference based on the failure of a party "to call a witness who would normally be expected to support that party's version of events” (see PJI 1:75 [advising a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury "may, although not required to, conclude that the testimony”  would not support [that party's] position on the question . . . and would not contradict the evidence offered by the opposing party on this question]).

The Court of Appeals discussed the elements for this charge, applicable to both criminal and civil trials, as follows: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the "control" of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.

The Court of Appeals relied on Leahy v Allen, 221 AD2d 88 (3d Dept 1996), where the Third Department held “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (Id. at92).  Here, defendants argued that the testimony of the uncalled witnesses would have been “cumulative of the plaintiff’s treating physician and radiology expert.”  The Court of Appeals rejected defendants analysis of whether the uncalled witnesses’ testimony would have been cumulative, holding that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony of other evidence favoring the party controlling the uncalled witness.  Thus, the trial court erred in denying plaintiff’s request, which was not harmless because the error here was not cured at closing and defendants failed to sufficiently challenge the testimony leading to the conclusion that plaintiff’s T12 fracture was caused by the MVA.

PRACTICE POINT:  Having read the case summary above you are all wondering if I have fallen and struck my head causing permanent damage.  This is obviously not a Labor Law case, so why is it here.  The reason is that in Labor Law cases, we tend to deal with cases involving serious traumatic injuries and sometimes the medical experts for both sides agree about the plaintiff’s condition.  This case is a warning to one and all, do not fail to call your expert just because he or she is simply going to testify the same way as the plaintiff’s provider or you will be facing a missing witness charge at the close of proof.  My recommendation is to have the independent medical examination doctor do a record review before noticing the independent medical examination when possible and if the notice needs to be sent before the full record review can be done do not be afraid to cancel the independent medical examination if it will simply prove to be redundant. 

There is a danger here though.  In a case where you passed on the independent medical examination, if the plaintiff suddenly takes a turn for the worse, but there is no additional area of injury, you will likely not be allowed to schedule an independent medical examination after the Note of issue is filed while if you had done one before an addendum based on the records, you would be allowed.  You will need to balance these aspects of the case and make a decision on a case by case basis, but knowing that you may face a missing witness charge and the implication of that with the jury is critical information and of serious concern.

 

Verdon v Port Auth. of N.Y. & N.J.
November 26, 2013
Appellate Division, First Department

Plaintiff allegedly was injured when the guardrail on the trailing platform he was working on broke and he fell 14 feet and landed on rebar.  The trial court granted plaintiff’s motion for summary judgment on his Labor Law § 240(1), denied third-party defendants’ and second third-party defendant’s motions for summary judgment dismissing their respective complaints. 

Labor Law § 240(1) (DRA)

The First Department held the evidence establishes prima facie a violation of § 240(1) because the protective device, i.e., the guardrail, “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of the gravity to an object or person.”  Moreover, plaintiff was neither required to prove that the guardrail was defective, nor present witnesses to his incident to bar summary judgment.  The evidence demonstrated that plaintiff fell from an elevated position.

PRACTICE POINT:  Here the safety device the plaintiff was using, in this case the trailing platform, failed to provide him protection from an elevated risk causing injury.  Here the safety device itself failed when the guardrail broke.  When the only safety device being used breaks and the plaintiff falls someone is going to be held in in most cases.  Once again the un-witnessed fall defense did not work.

Carrion v City of New York
November 27, 2013
Appellate Division, Second Department

Plaintiff allegedly was standing on an extension ladder that had been placed atop a scaffold when the scaffold unexpectedly tipped away from a wall, causing him to fall to the ground.  At that time, he was installing an electrical system on property owned and managed by the defendants City of New York (“City”) and the New York City School Construction Authority (“NYCSCA”).  Defendant URS Corp. hired plaintiff’s employer, nonparty Indy Electric Corp.

Plaintiff commenced this Labor Law § 240(1) action against the City, NYCSCA, URS Corp. and defendant Board of Education.  Plaintiff moved for summary judgment and defendants opposed, arguing in part that significant issues existed regarding plaintiff’s credibility, warranting denial.  The trial court granted plaintiff’s motion, and defendants appeal.

Labor Law § 240(1) (DRA)

“Although a motion for summary judgment should not be granted where the facts are in dispute”, the dispute “must relate to material issues.”  Here, the Second Department held plaintiff established prima facie entitlement to summary judgment through deposition testimony and affidavits demonstrating that the scaffold failed to provide him proper protection for the work being performed, and that this failure was a proximate cause of his injuries.

Additionally, the Second Department held that plaintiff’s 50-h testimony and his deposition testimony were consistent on the material facts as to how the accident occurred.  Simply put, defendants failed to “offer any evidence, ‘other than mere speculation, to refute plaintiff’s showing or to raise a bona fide issue as to how the accident occurred.’”

PRACTICE POINT:  The court points out that testimony from co-workers who did not witness the accident is not, alone, sufficient to establish a question of fact as to how the accident happened.  Note that this is different from the situation where the plaintiff’s statements to co-workers immediately following an accident, statements which provide a non-covered explanation for the accident, can be used by the defense to establish a question of fact.  An example of this would be where the plaintiff tells his co-workers following and accident that he simply fell off a ladder which did not move and was in good shape but testifies that the ladder shifted causing him to fall.  In that situation the courts have held that it raises a question of fact regarding how the accident happened.

Hai-Zhong Pang v LNK Best Group, Inc.
November 27, 2013
Appellate Division, Second Department

Plaintiff submitted evidence that, while in the course of his employment as a laborer removing insulation and broken pipes from the ceiling of a building owned by defendants, he was standing on an unsecured A-frame ladder when the ladder tipped over, causing him to fall.  Plaintiff commenced this Labor Law § 240(1) case, and moved for summary judgment.  Defendants argued that plaintiff was the sole proximate cause of his incident.  The trial court granted plaintiff’s motion. 

Labor Law § 240(1) (DRA)

The Second Department affirmed as plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability.

PRACTICE POINT:  Not much to say here, the ladder the plaintiff was standing on tipped over and thus the statute was violated.  No surprise here.

 

Cueva v 373 Wythe Realty, Inc.
November 27, 2013
Appellate Division, Third Department

Plaintiff was employed on a demolition and asbestos abatement project and was working on the roof of a building owned by the defendant 373 Wythe Realty, Inc. (“Wythe”).  While plaintiff was dragging a piece of cut asbestos across the roof to a stacking area, the section of roof across which he was walking collapsed, and he fell to the ground level of the building.  Plaintiff commenced this Labor Law § 241(6) action against Wythe and their demolition and construction contractors.  Plaintiff moved for summary judgment and defendants opposed, asserting that 12 NYCRR § 23-3.3(1) did not apply to the facts of this case.  The trial court granted plaintiff’s motion and denied the cross-motion.   

Labor Law § 241(6) (JAE)

Industrial Code (12 NYCRR) § 23-3.3(l) applies to the facts of this case. That regulation provides, in pertinent part, that “[a]ny person working above the first floor or ground level in the demolition of any building or other structure . . . shall be provided with safe footing consisting of sound flooring.”   Inasmuch as the plaintiff submitted evidence that he was performing demolition work above ground level, and that the roof on which he was standing collapsed, he demonstrated prima facie that he was not provided with “sound flooring” in violation of this regulation.

 

Sobenis v Harridge House Assoc. of 1984
November 27, 2013
Appellate Division, Second Department

Plaintiff allegedly was working on an air conditioning system in a building when he fell off of a ladder and sustained personal injuries.  He commenced suit against, among others, 225 East 57th Street Owners Corp., the owner of the building, and Wallack Management, Inc., the manager of the building (“appellants”), alleging a violation of Labor Law § 240(1) and common-law negligence.  The appellants moved for summary judgment dismissing the complaint, and the trial court denied the motion.

Labor Law § 240(1) (DRA)

The Second Department held the appellants demonstrated entitlement to judgment as a matter of law by showing that plaintiff’s work did not constitute “erection, demolition, repairing, altering, painting, cleaning, or pointing of a building within the meaning of Labor Law § 240(1) so as to bring him within the ambit of the statute.”  The appellants established that plaintiff was performing annual servicing of the air conditioning system, done after the end of every cooling season, to ensure that the system continued to function effectively and thus, he was merely engaged in routine maintenance.  

PRACTICE POINT:  The difference between repair and maintenance rests on the task being performed.  When in question I find it useful to look to the regularity with which the task is done.  Maintenance records are often helpful.  If you can locate and produce maintenance records which verify that the job is done annually, or monthly, or at any regular interval the argument that it if routine maintenance is much easier to make, and win.

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

Appellants also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence by demonstrating that plaintiff's accident was caused by the means and methods of his work, that his work was directed and controlled by his employer, and that they had no authority to exercise supervisory control over his work.  As plaintiff failed to raise a triable issue of fact, the Second Department held the trial court should have granted that branch of the appellants’ motion dismissing the common-law negligence claim.

Ortega v Liberty Holdings, LLC
November 27, 2013
Appellate Division, Second Department

Plaintiff, employed by Marcus Park, LLC allegedly was injured when part of a wall collapsed onto plaintiff’s ladder at a construction site.  He commenced this action against defendant Liberty Holdings, LLC (“Liberty”), and others, for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(1).  In addition to alleging that Liberty owned the premises, plaintiff alleged that Liberty operated, managed, maintained, and controlled the premises, and was the general contractor for the construction project. 

Liberty moved for summary judgment dismissing the complaint, arguing it was neither plaintiff’s employer nor held legal title to the premises on the date of plaintiff’s incident.  The trial court denied Liberty’s motion, and Liberty appeals.

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

The Second Department upheld the trial court’s denial of summary judgment to Liberty on the common-law negligence and Labor Law § 200 claims.  The Second Department held that Liberty established, prima facie, that it was not the record owner of the premises on the date of plaintiff's incident, by producing a deed to the premises that transferred ownership to another party prior to the accident.

However, Liberty's evidentiary submissions did not address the issues of Liberty's occupancy, control, and special use of the premises at the time of the accident. Likewise, Liberty failed to establish, prima facie, that it was not the general contractor for the construction project.  As Liberty failed to meet its prima facie burden with regard to all the claims as asserted in the complaint, the trial court properly denied Liberty's motion, without regard to the sufficiency of the papers offered in opposition.

 

Pope v Safety & Quality Plus, Inc.
November 27, 2013
Appellate Division, Second Department

Plaintiff, an employee of a subcontractor, allegedly sustained injuries when he stepped off an unguarded edge of an elevated concrete portion of a basement at a museum renovation site. Plaintiff alleged that cardboard was piled next to the edge of the elevated area in such a manner that it overlapped with and obscured the edge.  Plaintiff commenced this Labor Law § 200 and common-law negligence suit against, among others, defendant RC Dolner, the general contractor, and Safety and Quality Plus, Inc. (“Safety”), a safety consultant hired by RC Dolner.  At the close of evidence, the trial court granted Safety’s motion for judgment as a matter of law, dismissing RC Dolner’s cross-claims seeking common-law indemnification and contribution because Safety could not be held liable for plaintiff’s injuries and RC Dolner could not maintain its cross claims against Safety. 

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

The case proceeded to trial on the issue of liability on the plaintiffs' causes of action alleging violations of Labor Law § 200 and common-law negligence against RC Dolner and Safety.  The trial evidence showed that, prior to the accident, Safety had recommended that RC Dolner install a guardrail in the subject area and that, pursuant to that recommendation, RC Dolner had in fact installed a guardrail. No evidence was presented establishing who removed the guardrail, when the guardrail was removed, or who placed the cardboard in the subject area. 

The Second Department affirmed the trial court’s decision granting Safety motion to dismiss, stating that no rational jury could have found that the safety consultant (Safety) was responsible for providing plaintiff with a safe place to work or had the authority to supervise or control the performance of the work that allegedly brought about plaintiff’s injury.

 

Jackson v Heitman Funds/191 Colonie LLC
November 27, 2013
Appellate Division, Third Department

Plaintiff, a roofer, was employed by a contractor hired by defendants to replace a roof on a shopping center.  Plaintiff was injured when the handle of a roll carrier – a device used to dispense roofing material (the membrane roll) – hit him in the head as he was helping to unroll the membrane.  The incident allegedly occurred when the roll carrier shifted on the slippery roof, causing the membrane roll to drop, thereby forcing the T-handle to rapidly move upward and hit plaintiff in the side of his head.

Plaintiff commenced this action claiming violations of Labor Law § 240(1) and § 241(6).  The trial court denied plaintiff’s motion for summary judgment on both claims, and granted defendants’ motion to dismiss the § 240(1) claim and portions of § 241(6) claim.  Plaintiff appealed.

Labor Law § 240(1) (DRA)

The Third Department agreed with the trial court’s finding that plaintiff’s injuries flowed “directly from the force of the falling [membrane] roll on the T-handle, causing the handle to strike plaintiff.”  In analyzing whether the risk of injury arose from a physically significant elevation differential so as to require defendants to provide plaintiff with protection by means of a safety device as set forth in the statute, the Third Department disagreed with the trial court’s finding that did not.

“In determining whether an elevation differential is physically significant or de minimis, we must take into account ‘the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent.'"  Here, plaintiff established that a membrane roll weighing between 600 and 800 pounds was hoisted by the roll carrier to a height of approximately 1½ feet off the roof's surface at the time of the incident.  The Third Department held that despite the relatively short distance the membrane roll fell, it constituted a significant elevation differential given its substantial weight and the powerful force it generated when it fell, so as to require a safety device as set forth in Labor Law § 240(1).

In support of plaintiff’s motion for summary judgment on the § 240(1) claim, he argued that no safety device was provided and that, even if the roll carrier could be considered a safety device, it was inadequate to safely hoist the membrane roll from the roof’s surface.  Plaintiff also submitted the affidavit of the assistant supervisor present onsite when plaintiff was injured, stating that the roll carrier slipped on the icy surface, causing the roll to fall onto the roof’s surface which, in turn, forced the T-handle off the lifter, causing it to rapidly rise and hit plaintiff on the head.  

Plaintiff’s expert affidavit opined that the slippery condition of the roof allowed the roll carrier to shift, causing it to come out of balance under the weight of the membrane roll, and it "failed to maintain the elevated weight in a stable position.”  Plaintiff’s expert further opined that "the roll carrier by itself was an inadequate device to maintain the roll in a stationary, stable, elevated position."  Therefore, plaintiff should not have used the roll carrier without additional safety devices as listed in the statute and his "injuries were the direct consequence of a failure to provide adequate protection against the risk of the roll carrier failing to maintain the elevated position of the membrane."  The Third Department held that based on this evidence and the undisputed fact that the roll carrier did not maintain the membrane roll at the height to which it was hoisted, plaintiff made a prima facie showing that defendants' failure to provide adequate safety devices proximately caused plaintiff's injuries, shifting the burden to defendants to present evidence that they furnished plaintiff with adequate protection.

Defendants submitted the affidavit of a civil engineer and registered roof consultant, who had experience with the roll carrier device involved and concluded that the roll carrier is an adequate safety device and, after inspecting it, determined that it did not fail, collapse or slip.  He also stated that he was "not aware of any safety device . . . that would have prevented this accident." Accordingly, the Third Department held questions of fact exist as to whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by the statute to prevent summary judgment on the Labor Law § 240 (1) claim.

PRACTICE POINT:  Where to start with this case.  The court follows Runner and finds that a heavy object falling a short distance and not striking the plaintiff can qualify for a 240(1) claim.  No surprise there, Runner is one of the most cited cases since the Court of Appeals decided it in 2009.  Next the decision shifts to the determination of whether there was any safety device which could have protected the plaintiff.  The importance of retaining an expert cannot be overlooked here.  With each side of the case having an expert who opined that here either was, or was not, provided an adequate safety device the court found a question of fact.

Labor Law § 241(6) (JAE)
For the § 241 (6) claim, plaintiff was required to demonstrate that defendants violated a provision of the Industrial Code that imposed a specific duty.  With respect to his claim premised upon a violation of the regulation requiring safety measures to prevent or rectify slipping hazards (see 12 NYCRR 23-1.7 [d]), plaintiff offered unrefuted evidence that the roof was slippery with patches of black ice.  However, whereas plaintiff’s expert opined that the slippery condition was a cause of the accident, defendants’ expert concluded otherwise based on various tests he conducted.  Thus, Supreme Court properly determined that there are triable issues of fact and denied the parties' respective motions for summary judgment with respect to a violation of this regulation.
The Third Department further affirmed the trial court’s dismissal of plaintiff’s Labor Law § 241 (6) claim premised upon a violation of 12 NYCRR 23-1.8 (c) (1), pertaining to the provision of protective headgear.  Under these circumstances, plaintiff failed to raise a triable issue of fact as to whether he was exposed to the hazards of a falling object or head bumping against which this regulation was designed to protect.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)

Regulation § 23–5.4, prescribing standards for tubular welded frame scaffolds and for safety railing posts installed on such scaffolds, inapplicable where no safety railing provided (Holly v Chautauqua, 63 AD3d 1558, 881 NYS2d 741, rev’d on other grds 13 NY3d 931, 895 NYS2d 308 [4th Dept 2009]); inapplicable where worker stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second (Mouta v Essex Market Dev. LLC, 106 AD3d 549, 966 NYS2d 13 [1st Dept 2013]).

Regulation § 23–5.4(a) concerning standards for tubular welded frame scaffolds, inapplicable where worker fell off scaffold after wall collapsed since worker failed to demonstrate tubular welded frame scaffold was in use at time of injury (Greaves v Obayashi Corp., 55 AD3d 409, 866 NYS2d 47 [1st Dept 2008]).

Regulation § 23–5.6, prescribing standards for pole scaffolds, inapplicable where the accident did not involve use of scaffold (Maldonado v Townsend Ave. Enterprises, supra); inapplicable where worker stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and fell from the fourth floor to the second (Mouta v Essex Market Dev. LLC, supra).

Regulation § 23–5.6(f) dealing with pole scaffold erection and removal, is sufficiently specific to support a § 241(6) cause of action (Miles v Great Lakes Cheese of New York, Inc., 103 AD3d 1165, 958 NYS2d 847 [4th Dept 2013]). 

Regulation § 23–5.7, dealing with outrigger scaffolds, held inapplicable where the accident did not involve use of scaffold (Maldonado v Townsend Ave. Enterprises, supra); inapplicable where worker stepped on a section of plywood platform that, unbeknownst to him, was being dismantled, and he fell from the fourth floor to the second (Mouta v Essex Market Dev. LLC, supra).

Regulation § 23–5.8, prescribing standards for suspended scaffolds and regulates the construction and operation of scaffolds, is sufficiently specific to support a § 241(6) cause of action (Smith v Broadway 110 Developers, LLC, 80 AD3d 490, 914 NYS2d 167 [1st Dept 2011]).  Regulation § 23–5.8, does not mention safety railings, and requirements for safety railings in §§ 23-5.1 and 23-5.3 are applicable to suspended scaffolds (Macedo v J.D. Posillico, Inc., 68 AD3d 508, 891 NYS2d 46).  However, regulation § 23–5.8 applicable where no evidence that defendant provided required tie-in (Avilla v Ashton Managements Co., 24 AD3d 273, 807 NYS2d 24 [1st Dept 2005]).

Regulation § 23–5.8(a) requiring a suspended scaffold to be tied at every working level to prevent injuries resulting from swaying, inapplicable since plaintiff's accident did not result from the swaying of the scaffold while at a working level, but occurred because plaintiff's coworker activated the motor (Saleh v Saratoga Condominium, 10 AD3d 645, 783 NYS2d 588 [2d Dept 2004]).

Regulation § 23–5.8(c) requiring supervision when a scaffold is moved, precluded summary judgment as to the proximate cause of injuries sustained by worker when a motorized hoist fell from a scaffold which he was wheeling along an elevated bridge (Ragone v Spring Scaffolding, Inc., 46 AD3d 652, 848 NYS2d 230 [2d Dept 2007]).

Regulation § 23–5.8(h), concerning scaffold platforms and planking, precluded summary judgment for defendants as material issues of fact existed as to whether defendants provided nails, cleats, or other securing devices for floating scaffold, as required by Industrial Code, at the time of iron worker's accident, in which floating scaffold cracked upon being struck by worker (Pietrowski v Are-East river Science Park, LLC, 86 AD3d 467, 928 NYS2d 266 [1st Dept 2011]).

Regulation § 23–5.13, pertaining to carpenters’ portable bracket scaffolds, is inapplicable where the accident did not involve use of scaffold (Maldonado v Townsend Ave. Enterprises, supra).

Regulation § 23–5.16, pertaining to trestle and extension trestle ladder scaffolds, is inapplicable where the accident did not involve use of scaffold (Maldonado v Townsend Ave. Enterprises, supra).

Regulation § 23–5.17, prescribing standards for ladder jack scaffolds, is inapplicable where the accident did not involve use of scaffold (Maldonado v Townsend Ave. Enterprises, supra).

Regulation § 23–5.17(c), pertaining to scaffold construction of ladder jack scaffolds, precluded summary judgment as genuine issue of material fact existed as to whether ladder scaffold from which plaintiff fell was placed, fastened, or held, or was equipped with acceptable means to prevent slipping (Handville v MJP Contractors, Inc., 77 AD3d 1471, 908 NYS2d 799 [4th Dept 2010]).

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Labor Law Pointers

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V. Christopher Potenza

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Labor Law Team

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            V. Christopher Potenza                                                        Marc A. Schulz
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