From the Editor:
Hello again from the desk of a disappointed hockey fan. The USA Women’s hockey team just lost to Canada in overtime but does bring home the silver medal. Tomorrow’s game against Canada in the men’s division offers a chance for payback.
Enough hockey talk, the Court of Appeals released two decisions today, the first, Fabrizi, deals with a falling object and is, in my mind, a departure from the rule established in Wilinski and Runner. The court analyses the status of a pipe coupling as a safety device, and finds it was not, such that its failure does not result in a violation of 240(1). Judge Lippman’s dissent refers to the view of the majority as myopic in their focus on the coupling as a safety device. This is an important case as it provides for a strong defense in any falling object case where the object falls not as a result of the failure of an obvious safety device.
In the second case, Morris, the Court deals with the reading of a regulation which Judge Pigott, in the dissent, calls an extremely broad manner. While this case on its face seems to deal only with the specific regulation dealing with forms, the fact that the court expands its reading beyond the actual language of the regulation will undoubtedly be used by many of us in preparing motion papers and appeals.
Interestingly in these the two cases the same two Judges write the opinions with Judge Pigott writing for the majority in Fabrizi finding for the defense with Judge Lippman dissenting for the plaintiff while on Morris Judge Lippman writes for the majority in support of the plaintiff and Judge Pigott dissents for the defendant.
It has been a good month for decision from the Court of Appeals thus far; we will continue to watch for further cases and get our opinion out quickly for any Court of Appeals case.
Cheer for USA hockey, game against Canada is on tomorrow at noon EST so while I welcome questions of comments at any time, your answer will be very short if the question is submitted between noon and about 3:00 tomorrow.
David R. Adams
Hurwitz & Fine, P.C.
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Fabrizi v 1095 Ave. of the Ams., L.L.C.
February 20, 2014
Court of Appeals
Plaintiff, an electrician employed by Forest Electric Corp. ("Forest"), sustained injury when a 60-80 pound conduit pipe fell on his hand. Forest had been hired by defendant Magen Construction Company, Inc. ("Magen") to overhaul the electrical system in offices leased by defendant Dechert, LLP ("Dechert") from the building owner, defendant 1095 Avenue of the Americas, LLC ("1095"). As part of the overhaul, Forest was responsible for the installation of conduit piping through the building's floors.
On the day of the incident, plaintiff was relocating a pencil box pursuant to a "change order" as the pencil box had been positioned approximately one week earlier in such a way that it threatened to obstruct part of the building infrastructure yet to be installed. To accomplish the task, plaintiff disconnected the box from a structure known as a "Kindorf support," which anchored the box to the floor and the wall, and also from two sections of conduit pipe running above and below the pencil box, respectively.
After the pencil box was disassembled from its supports, a considerable length of galvanized steel conduit, weighing 60-80 pounds, was left hanging above plaintiff as he knelt below to drill. The conduit was connected to another section of pipe near the ceiling by a compression coupling, which is essentially a cylindrical metal sleeve that tightens around the ends of two pipes to secure them together. When plaintiff began drilling holes in the concrete floor in preparation for relocating the Kindorf, the suspended conduit came loose from its coupling and plummeted to the floor, crushing plaintiff's right thumb.
Plaintiff thereafter brought this action against defendants and others, asserting, as relevant here, that defendants violated Labor Law § 240(1). Defendants 1095 and Magen moved for summary judgment dismissing the § 240(1) claim. Plaintiff opposed the motion and cross-moved for partial summary judgment on liability against 1095, Magen and Dechert, claiming, in reliance on plaintiff's deposition testimony, that a more secure "set screw coupling," rather than the purportedly inadequate compression coupling, should have been used to secure the top conduit.
The trial court granted plaintiff's cross-motion, and denied defendants' motion seeking to dismiss the § 240(1) claim, holding that the conduit, being attached to the ceiling by a compression coupling that failed, was not properly secured so as to afford plaintiff protection. The First Department modified the decision by denying plaintiff's motion for summary judgment, holding that plaintiff failed to establish as a matter of law that defendants' failure to provide a protective device, i.e., a set-screw coupling, was a proximate cause of his accident, but otherwise affirmed. The First Department’s dissent argued the coupling did not constitute a statutory safety device of the kind enumerated in the statute and therefore, defendants’ motion should have been granted.
In order to prevail on summary judgment in a § 240(1) “falling object” case, the injured worker must demonstrate the existence of a hazard contemplated under that statute “and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.” Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured" or "required securing for the purposes of the undertaking." Contrary to the dissent's contention, § 240(1) does not automatically apply simply because an object fell and injured a worker; rather, "a plaintiff must show that the object fell … because of the absence or inadequacy of a safety device of the kind enumerated in the statute."
The Court of Appeals held the First Department properly concluded that plaintiff had not established entitlement to summary judgment on liability, but erred in denying summary judgment to defendants 1095 and Magen, because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device. According to the Court of Appeals, the compression coupling, which plaintiff claims was inadequate, is not a safety device "constructed, placed, and operated as to give proper protection" from the falling conduit because its only function was to keep the conduit together as part of the conduit/pencil box assembly. Moreover, the coupling had been installed a week before the incident and had been serving its intended purpose until a change order was issued and plaintiff dismantled the conduit/pencil box assembly.
The Court of Appeals rejected plaintiff's argument that the coupling itself is a safety device, albeit an inadequate one, because said argument extends the reach of § 240(1) beyond its intended purpose to any component that may lend support to a structure. It cannot be said that the coupling was meant to function as a safety device in the same manner as those devices enumerated in the statute, and it follows that defendants' failure to use a set screw coupling is not a violation of § 240(1)'s proper protection directive. Accordingly, a set screw coupling, utilized in the manner proposed by plaintiff, is not a safety device within the meaning of the statute. Further, plaintiff conceded that compression and set screw couplings are "basic couplings" that serve identical purposes, namely, to function as support for the conduit/pencil box assembly, not to provide worker protection and therefore, the fact that defendants utilized compression couplings rather than set screw couplings as part of the assembly did not alter the Court of Appeals analysis.
According to Chief Judge Lippman’s dissent, “the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” As such, the crucial legal questions arising from this case are whether the task of repositioning the pencil box entailed an elevation-related risk that triggered defendants' duty to supply adequate safety devices, and whether the failure to do so caused the accident.
The dissent held that plaintiff was exposed to a gravity-related hazard within the meaning of the statute because he was kneeling on the floor to drill, situated several feet below a 60-to-80-pound segment of conduit pipe made of galvanized steel. The conduit was attached to the pipe above by only a compression coupling whose grip was inadequate to withstand the vibrations of drilling. As to the question of proximate cause, the record evidence shows that the absence of an effective safety device caused plaintiff's injury as a tool capable of stabilizing the conduit pipe — whether brace, clamp, coupling, or otherwise — would be precisely the sort of device contemplated by § 240(1). Without such a device, however, the pipe was insufficiently secure and plaintiff incurred injury as a result.
By focusing myopically on whether couplings fall under the statute, the majority loses sight of defendants' burden on summary judgment. To prevail, it is, according to the dissent, not enough for defendants to argue that a particular alternative device can be sensibly distinguished from those enumerated in the statute. Instead, they must demonstrate either the absence of a gravity-related risk or, where the risk posed by the elevation differential is readily apparent, a deficient causal nexus between the failure to provide a safety device and plaintiff's injury.
Although defendants raised a challenge with regard to causation in arguing that plaintiff's method of performing the work unnecessarily created the risk by dismantling the pencil box prior to drilling holes in the floor, the dissent held there was no evidence presented that this modus operandi constituted anything but standard procedure in the trade. Thus, the dissent held that plaintiff made a prima facie showing that he had performed the same task four or five times in the course of his career and had routinely undertaken it in an identical manner. In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff's own conduct was the proximate cause of the accident.
PRACTICE POINT: The main point of the decision is whether the falling object, the conduit, was secured by a safety device or not, and does that matter in deciding the case. The majority found that it did in fact matter finding that the coupling was not a safety device as intended by the statute and thus, the fact that the object fell is not caused by the failure of a safety device. The dissent on the other hand points out that the Court of Appeals in both Wilinski and Runner looked beyond the specific safety device issue and held that where there is gravity related risk that there was a failure to provide a safety device appropriate to prevent the object from falling (or rolling down the stairs in the Runner case) that it was in fact a labor law case. Thus, the question is how does this case effect the way we prosecute or defend a labor law case. The answer is that it gives the defense a case to rely on when there is a falling object which, while not actually being hoisted or secured, falls. If the object falls due to the failure of an enumerated, or obvious, safety device it remains a valid labor law case but if the object falls without the failure of a safety device then, applying this case, it is not a valid case.
Morris v Pavarini Constr.
February 20, 2014
Court of Appeals
Plaintiff, a carpenter working at a building construction site in Manhattan, was allegedly injured when a large, flat object fell on and injured his hand. He commenced this personal injury action against defendants, the construction manager and owner of the building, alleging common-law negligence and violations of Labor Law §§ 200, 240, and 241(6). As relevant to this appeal, in support of his § 241(6) claim, plaintiff alleged that the object that fell on his hand was a "form" subject to specific safety requirements under Industrial Code 12 NYCRR 23-2.2(a). A form refers to a mold used in the shaping and solidification of concrete. Defendants countered that the object was not a "form" within the meaning of the Industrial Code because it was only one side of an as-yet uncompleted form, in other words a component of an unfinished form.
Defendants moved to dismiss plaintiff's § 241(6) claim, and the trial court denied the motion. The First Department reversed, granted the motion and dismissed the claim, holding that 23-2.2(a) did not apply because "the form at issue was still in the process of being created.” The Court of Appeals reversed the First Department, holding that while the first sentence of § 241(6) reiterates a common-law standard of care, the second sentence requires owners and contractors to comply with the Commissioner of Labor's rules, and where such a rule or regulation imposes a "specific, positive command," owners and contractors are subject to a nondelegable duty. As the Court of Appeals found a specific requirement in section § 23-2.2(a) which mandates that "forms" be "braced or tied together so as to maintain position and shape,” the First Department should not have granted summary judgment based on the record as then developed. The Court of Appeals remitted the matter to the trial court for a framed-issue hearing on whether "the words of the regulation can sensibly be applied to anything but completed forms."
At the hearing before the trial court, the parties introduced expert testimony on how forms are assembled, and how component parts and completed forms are stabilized and secured at construction sites. Defendants structural engineer expert described a concrete form as "an assembly of all kinds of components" including form panels, and defined a brace as "a structural element" used to hold "the form in place so it won't move and shift." He also testified that a form wall must be secured in order to resist the impact of wind loads. On cross examination, he testified that in addition to wind loads, forms must resist other types of impact, including human contact like being bumped by a worker. Defendants’ expert admitted that the first side of a form that is put up, called the back component of the form, could be braced in order to prevent it from falling, and that braces can be installed when the back wall is raised.
Plaintiff introduced expert testimony of a civil engineer and a carpenter. Plaintiff's engineer testified that it was important to brace forms because they needed support to withstand the impact of wind loads that might "turn the wall over," and that bracing was necessary to resist the impact of vibrations common to construction sites. He testified that once a form wall goes up "you would have to brace it because it could be inherently unstable at that point," because of blowing wind, bumping, and vibrations. In describing bracing during the assembly process, he testified that as a wall goes up it is braced, and the bracing "would run from the wall of the form … diagonal[ly] down to the ground." Plaintiff's carpenter expert testified that a brace ensures that a wall does not fall over, and that braces could run from the top of the form and be bolted or nailed to concrete blocks.
The trial court thereafter granted defendants' summary judgment motion and dismissed plaintiff's § 241(6) claim, concluding that the back form wall was part of an entire form, and as such, did not come within the coverage of the regulation or § 241(6). Plaintiff appealed. The First Department, with one Justice dissenting, reversed on the law, and, upon a search of the record, granted summary judgment to plaintiff. According to the majority, the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position. The majority held that erection of the back form wall is the first step in the process of bracing and or tying a form, such that it would defy common sense to maintain that the entire form could be structurally safe and maintain its "position and shape" pursuant to § 23-2.2(a) without a proper brace. The dissent argued that the focus of § 23-2.2(a) "is the structural integrity of the form during the placement of concrete,” and the expert testimony was consistent with this interpretation. Defendants appealed pursuant to leave granted by the First Department.
Following the framed-issue hearing and opinions of the trial court and First Department on the legal question of the applicability of the regulation to plaintiff's case, defendants reasserted their argument that the regulation applies only to completed forms, and not to the back form wall which caused plaintiff's injuries. According to defendants, the operative regulatory language that imposes more than a general duty of care requires that forms "shall be properly braced or tied together to maintain position and shape," and the expert testimony established that this requirement cannot sensibly be applied to one side of a form standing on its own because it has no shape to maintain. Defendants contend this is the only plausible reading of § 23-2.2(a) because the regulation is intended to address the dangers associated with the "blow out" or collapse of a form containing liquid concrete.
Plaintiff argued that the experts made clear that the bracing required by § 23-2.2(a) may be applied to a single form wall for purposes of ensuring worker safety and to maintain the form wall's position and shape. Any other reading, plaintiff argues, is nonsensical because of the danger posed to workers from the hoisting of a single form wall to a vertical position during the assembly of the form, and the wall's vulnerability to collapse from a variety of construction site events.
The Court of Appeals held the testimony adduced at the framed-issue hearing establishes that the object that fell on plaintiff was a back wall panel, which was a component of a form under assembly at the time of the injury, and that the back wall is the type of component which can be subjected to the requirements of § 23-2.2(a) because the experts testified that a back wall must be braced once it is hoisted up to a vertical position in order to withstand the impact of external as well as internal conditions on the wall and a brace could be installed when a back wall is hoisted in order to stabilize it specifically against collapse from the external condition of wind loads. Defendants' expert testified that wind loads are "part of the loads that the form assembly has to resist," and braces could be installed when the first wall (the back wall) is put up, and once the wall is raised it could maintain this position by placement of a brace that prevents the back wall from falling.
Plaintiff's engineer testified that a form wall must be braced otherwise it topples over, and the only way to prevent a wall from turning over from a wind load blowing on it is "by having a brace." He also testified that once the back wall goes up it is braced, and that both walls did not need to be in place to install a brace, and once up, the wall may be standing for some period, possibly up to days at a time, before the form is completed, a reality of construction work also admitted by defendants' expert. Plaintiff's carpenter expert reiterated the importance of bracing before the front wall is attached, in order to keep the wall from falling.
The Court of Appeals also rejected defendants argument that the regulation's provision (b), titled "Inspection," requires that certain designated persons make continuous inspections to ensure "the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete," similarly limits the mandatory bracing and tying requirement of provision (a) to completed forms because the ongoing inspection requirement contained in provision (b), applicable only to periods of the "placing of concrete," merely recognizes that during this stage of concrete work, the stability of the form is especially vulnerable and requires particular attention, as noted by its other requirement that "[a]ny unsafe condition shall be remedied immediately." According to the Court of Appeals, interpreting the regulation as defendants suggest would result in diminished protections for workers during the assembly of forms, as compared with the concrete pouring process stage of the work, a reading of the regulation that runs counter to its text and undermines the legislative intent to ensure worker safety.
As the expert testimony supports the conclusion that the language of § 23-2.2(a) can sensibly be applied to other than a completed form, and may apply to a wall component, the First Department properly reversed the trial court's decision, and moreover, did not abuse its discretion as a matter of law by granting summary judgment to plaintiff.
According to Judge Pigott’s dissent, the testimony at the "framed issue" hearing was clear that a form was just that, a completed form; and that the regulation could not be reasonably interpreted as applying to anything but completed forms. Judge Pigott argued that the aim of the regulation at issue is to ensure the structural integrity of "forms" that have been assembled as part of the concrete work, and noted that even plaintiff's expert conceded that forms are constructed by erecting a "form wall," placing rebar in the middle, erecting a back form wall and then tying it together. Plaintiff’s expert further explained that whenever concrete is poured, it must be poured into a form.
Although both parties' experts agreed that a form "wall" should be braced before the form is completed to ensure that it does not tip over during the process of constructing the form, Judge Pigott held the issue is not whether such bracing should be used to support a form "wall," or whether such bracing could be utilized as such support but, rather, whether section § 23-2.2(a) was designed to address the bracing of a form wall in the first place. In Judge Pigott’s view, the majority's interpretation expands the reach of the regulation to include the bracing of an object, i.e., a form "wall" that is absent from the regulation, which directs that "forms" (and not a form wall) "be properly braced or tied together."
Simply put, although plaintiff may have been struck by a form "wall," he was not injured by a "form" and, more specifically, was not the victim of a type of accident this section was designed to prevent. Had the regulation required a form "wall" be braced "so as to maintain position and shape" — as the majority claims it should be interpreted — then that interpretation would be consistent with the regulation's directives. But a cursory glance at the regulation provides the answer: "Forms . . . shall be properly braced or tied together so as to maintain position and shape." Once the forms are erected, they are ready for a concrete pour, but that does not necessarily mean that the concrete will be ready for pouring at that moment. The regulation is there to ensure that such forms maintain their position and shape both before and during the pour, which can be done through either bracing or tying together. § 23-2.2(b) underscores that the regulation as a whole applies to completed forms, as it provides that "the stability of all forms . . . including all braces and other supports" must be continuously inspected "during the placing of concrete." Indeed, § 23-2.2(b) and (a) can be read in tandem as applying to completed forms; the latter provision requires that forms be braced or tied together even before the concrete pour (so as to protect against wind loads and vibrations), while the former provision affords protection to workers against the increased load on the forms by the liquid concrete. Therefore, the majority interprets § 23-2.2(a) in an extremely broad manner.
PRACTICE POINT: This decision would seem to be of limited application as it would only be useful in cases involving this specific regulation. That said, those of us who practice in this ever changing environment will undoubtedly find an argument that if the court of appeals can expand the meaning of a regulation beyond the actual language of the regulation in one case, that it would allow such an expansion to other regulations. Keep a close eye out for other regulations which attorneys seek to expand.
Labor Law Pointers
Editor
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
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Dan D. Kohane Cassandra A. Kazukenus
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V. Christopher Potenza Marc A. Schulz
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