Labor Law Pointers - Volume III, No. 7

 

From the Editor:

Do you have a situation, we love situations.  Do you have a question, we love questions.  Do you have a weird and unique fact pattern, we love them too.  Quick game of stump the lawyer, we will play along.  By all means, please call, email, text, write or just yell at me as us as we walk out of court, we love the challenge.

It is a usual day when Steve Peiper, Jen Ehman, Mark Schulz and I sit in my chart out a chain of parties on the white board behind my desk.  We start with a stack of party names, the owner on top and the employer on the bottom often with 4 or 5 parties in between.  There are lines and scribbles as we chart out the contractual obligations.  More lines and smeared words as we look at the additional insured issues.  Common law indemnity needs its own color.  Policy language, damn, looks like we are going to need another white board next to this one.  Maybe there is still a little but of the engineer still inside me somewhere.  Discussion, sometimes disagreement, a client on speaker phone, all part of the same process we run with every day.  Give us a situation; we will work out an answer.  That is why I have followed Dan in starting every issue with our mantra, you have a situation, we love situations.  Share it with us and it becomes our situation too, and, by the way, we hate to lose.

Talking about situation being shared with us we have been getting more and more interest in construction defect cases.  This is a growing and developing area of the law and we are making sure that we are up to date on the state of the law.  Others have obviously noticed as well as our own Jen Ehman is lecturing for the State Bar this Friday at their Advance Coverage seminar speaking on construction defect issues.  We are finding that our experience in products liability and construction law combined with our experience in coverage works well in the handling of construction defect cases.  They all start the same way, the structure is not working as planned, was it the design, the construction method, the material selected, why is it not working as intended.  Just ordered more white boards so please talk to me about your construction defect cases, I have wall space to fill.

Some interesting cases this month, 2 in particular where the both the first and the second applied the labor law logically denying plaintiff the protection of the labor law in remarkably similar situations.  In both cases the plaintiff was carrying something with co-worker when the co-worker dropped his end of the object being carried causing injury to the plaintiff.  Given that there is really no way to secure an object being carried by the plaintiff in either case and that this is not the type of elevation risk the stature was intended to cover it is should not be a surprise to anyone that both cases were dismissed.

Hopefully spring is really here, the ice is almost gone from the lake, mother’s day is upon us, the awning needs to go up and the lawn is freshly cut.  By the way, if I fall off the ladder while putting the awning up because Steve, who was holding the ladder stead for me decides to go and get a cold pop, do I have a claim.  The answer of course is no, single family exception, not being paid to put up my own awning so I am not “so employed” and it is routing maintenance as I put it up and take it down every year.  On the other hand I am perfectly within my rights to yell at Steve and make him feel bad for abandoning me.

Have a great May and look forward to summer.

 

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.

 

Garcia v 95 Wall Assocs., LLC
April 1, 2014
Appellate Division, First Department

Garcia was pushing a cart down a wooden ramp when the left handle of the cart came loose, fell through the sleeve and jammed into the ramp, causing the cart to come to an abrupt stop.  Garcia flipped onto the cart, and filed this Labor Law § 241(6) action predicated on the alleged violation of Industrial Code (12 NYCRR) § 23-1.28(a) and (b).  Defendants moved to dismiss those claims.  The trial court dismissed the claim predicated on 1.28(a) but denied the motion with respect to the 1.28(b).  Both parties appealed the trial court’s decision.

Labor Law § 241(6) (JAE)

In considering the decision of the trial court, the First Department opted to reverse as to both findings.  Although the first sentence of Industrial Code (12 NYCRR) 23-1.28(a), requiring hand-propelled vehicles to be maintained in good repair, is a general directive that cannot serve as a predicate for liability under Labor Law § 241(6), the second sentence, providing “[h]and-propelled vehicles having damaged handles or any loose parts shall not be used,” sets forth a sufficiently specific, positive command, the violation of which may serve as a predicate for plaintiff’s cause of action pursuant to Labor Law § 241(6) in this action.

With regard to 12 NYCRR 23-1.28(b), defendants established it was inapplicable.  This provision states the “[w]heels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles.”  Among other things, plaintiff’s own deposition testimony, established that the subject accident was not caused by a defect in the cart’s wheels. 

Schlichting v Elliquence Realty, LLC
April 2, 2014
Appellate Division, Second Department

Schlichting allegedly was injured after he fell from a ladder.  Before his deposition, Schlichting moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Elliquence Realty opposed the motion, arguing Schlichting was the sole witness to the accident and thus, there were questions of fact regarding how the accident occurred, and that the motion was premature.  The trial court granted Schlichting’s motion.

Labor Law § 240(1) (DRA)

The Second Department stated a “party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated.  This is especially so where the motion for summary judgment was made prior to the parties conducting depositions.”  

Here, the Second Department held that an award of summary judgment would be premature at this stage of the action because Schlichting’s summary judgment motion was made prior to his deposition.  In light of the fact that Schlichting was the sole witness to his accident, and that his account of the accident has been placed in issue, Elliquence Realty should have been afforded the opportunity to conduct his deposition.  Accordingly, the trial court should have denied plaintiff's motion, without prejudice to renewal upon the completion of discovery.

PRACTICE POINT: While we like this outcome, being provided to opportunity to conduct discovery before opposing the plaintiff’s Summary Judgment motion, do not assume that you will be afforded that opportunity every time.  Note that in this case the plaintiff was the sole witness to the accident and that the plaintiff’s version of the accident was in question of some sort.  While it is not unusual for a court to allow more discovery before deciding the Summary Judgment motion, it is not always thus.

 

Longo v Long Island Railroad
April 2, 2014
Appellate Division, Second Department

Longo allegedly was injured while performing demolition work at a building owned by defendant Long Island Railroad.  The demolition work involved removing lockers from the second floor of the building, transporting the lockers out of the building through a second floor fire escape, and placing the lockers in trailers.  As Longo and his coworker picked up a set of three lockers, his coworker lost his grip and the lockers fell on the Longo's hand.

Longo and his wife suing derivatively filed this negligence action against the property owner.  Long Island Railroad filed its motion to dismiss.  Longo cross-moved to amend his complaint adding alleged violations of Labor Law § 240(1) and § 241(6) based on § 23-2.1(b).  The trial court granted Long Island Railroad’s motion and denied Longo’s cross-motion.  Longo appealed.

Labor Law § 240(1) (DRA)

Under CPLR § 3025(b), applications for leave to amend pleadings should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit.  Here, the First Department affirmed the trial court’s decision to deny Longo’s cross-motion because the circumstances surrounding his action in which the lockers fell on his hand did not support a § 240(1) claim. 

PRACTICE POINT:  Sanity in the courts.  Here there was no procedural reason not to allow the plaintiff to amend and add the cause of action under 241(6), but the court very appropriately decided that dropping a locker while carrying it, and hurting the hand of the guy on the other end of the locker is, quite simply, not what the labor law was enacted to protected against.

Labor Law § 241(6) (JAE)

The First Department also affirmed the trial court’s decision in denying that branch of Longo's cross-motion for leave to amend the pleadings alleging a violation of § 23–2.1(b), since that section lacks the specificity required to support a cause of action under Labor Law § 241(6).

Gdanski v 5822 Broadway Assocs., LLC
April 2, 2014
Appellate Division, Second Department

Plaintiff's decedent (the “injured worker”), whose death was unrelated to the subject accident, arrived at a building owned by defendant/third-party plaintiff, 5822 Broadway Associates, LLC (“Broadway”), to “check ... out” an air conditioning unit that his company had previously installed there to determine why one of the rooms in the building was not receiving cool air.  The injured worker ascended an exterior ladder which was fabricated and installed by defendant/ third-party defendant, S & V Iron Works Corp. (“S&V”).  The ladder was permanently affixed to a cinder block wall leading up to the roof where the air conditioning unit was located.  As the injured worker was ascending the ladder, with a “multi screwdriver,” pliers, and a tester in his pocket, he fell, allegedly sustaining injuries.

Plaintiff filed this action alleging a violation of Labor Law § 240(1) against Broadway and negligence against S&V.  Broadway moved to dismiss the claim against it, arguing that the injured worker was not engaged in an enumerated activity at the time of the accident.  S&V also filed its summary judgment motion claiming that it did not owe a duty of care to the injured worker, who was not a party to S&V’s contract with Broadway.  The trial court denied both motions, and Broadway and S&V appealed. 

Labor Law § 240(1) (DRA)

The Second Department held that Broadway established prima facie that Gdanski was not engaged in an enumerated activity under the scaffold law in attempting to reach a rooftop air conditioning unit.  In opposition, the Second Department held Plaintiff failed to raise a triable issue of fact.

PRACTICE POINT:  Perfect time to review exactly what activities are covered by 240(1).  They include, and are in fact restricted to, the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.  Here the category the plaintiff would have been trying to qualify under would be repair, but the court found that the actions of the plaintiff were not actually repair as the plaintiff did not even know what, if anything was wrong with the unit and was not repairing anything at the time of the accident.  These cases turn on the precise activity the plaintiff was engaged in at the time of the accident.

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

S&V established as a matter of law  that it did not owe a duty of care to the plaintiff’s, who was not a party to S&V’s contract with Broadway, as an alleged breach of a contractual obligation will generally not give rise to tort liability in favor of a non-contracting third party.

Indemnity Issues in Labor Law (SEP)

As the Second Department held that Broadway was entitled to summary judgment dismiss the § 240(1) action, the only remaining claim against it, Broad’s third-party action was against S&V was likewise subject to dismissal.

Cerverizzo v City of New York
April 8, 2014
Appellate Division, First Department

Cerverizzo, an employee of third-party defendant subcontractor Delta Installations, Inc. (Delta), allegedly suffered injuries due to the inhalation of toxic fumes while he was installing brackets in an empty aeration tank at the Hunts Point Sewage Treatment Plant, owned by defendants New York City and the Department of Environmental Protection (DEP), which hired defendant Yonkers Construction Corp., as the general contractor, to upgrade the plant (collectively “Defendants”). 

Cerverizzo filed this action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) predicated on Industrial Code (12 NYCRR) regulations §§ 23-1.7(g) and 1.8(b).  Defendants/third-party plaintiffs’ filed its motion for summary judgment dismissing Cerverizzo’s compliant and for judgment on their third-party contractual indemnification claim against third-party defendant J. Blanco.  The trial court denied the motion, and defendants/third-party plaintiffs appealed.

Labor Law § 241(6) (JAE)

The Labor Law § 241(6) claim insofar as predicated on 12 NYCRR 23-1.8(b) should have been dismissed.  Cerverizzo did not point to any provision within 12 NYCRR 23-1.26 and 23-2.8 requiring a respirator for the work he was performing.  To the extent 12 NYCRR 23-1.7(g) was subject to the relevant provisions of Industrial Code part 12 which require respirators, those provisions, by their plain language, apply to limited situations not relevant here (see 12 NYCRR 12-1.5[a][1], 12-1.9[a][1]).

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

The First Department held that triable issues of fact exist as to whether defendants fulfilled their duty to adequately monitor the air quality in the subject tank, and thus, whether they had constructive notice of the fume condition that allegedly caused plaintiff's injuries.

Indemnity Issues in Labor Law (SEP)

In addressing NYC’s contractual indemnity claim against plaintiff’s employer, the Court noted that the broad indemnity language contemplated NYC’s protection in this claim. That clause provided indemnity for losses arising out the Subcontractor’s work, whether “caused in whole or in part by the Subcontractor.” Moreover, as the clause appears to have had “savings language,” it was not invalid under New York 5-322.1

Bisram v Long Is. Jewish Hosp.
April 8, 2014
Appellate Division, First Department

During the construction of a hospital, Bisram allegedly was injured on a float stage in a workplace accident, which arose from repairs being made to a pier in a narrow waterway between Governor's Island and Brooklyn; navigable waters.  Bisram filed this action alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6) predicated on Industrial Code (12 NYCRR) § 23–1.7(b)(1)(i) and (iii).  Cross-motions for summary judgment were filed by both parties.  The trial court granted Bisram’s motion.  The hospital and contractor (collectively “Defendants”) appealed.

Labor Law § 240(1) (DRA)

Bisram established entitlement to summary judgment on his Labor Law § 240(1) claim by testifying that when he stepped onto the metal decking he had just laid in place but not yet fastened, the beam beneath it shifted, causing him to fall from the first-floor level of the building to the cellar level.  Bisram testified that he was wearing a harness that was tied into a retractor at the time of his fall.  However, the First Department held these safety devices proved inadequate to protect him against injury resulting from falling off the beam. 

Defendants' argument that Bisram was the sole proximate cause of his accident because he failed to tie his harness into the retractor line was found not to be supported by the evidence.  In addition to Bisram’s own testimony that he was tied off before he fell, defendants' construction supervisor observed that Bisram was tied off 15 minutes before the accident, and Bisram's employer's vice president observed that he was tied off 10 minutes before the accident.  

In any event, the First Department held defendants' failure to secure the steel beam was a proximate cause of the accident.  Contrary to defendants' argument, the metal deck flooring and beam on which Bisram was standing to perform his job duties functioned as an elevated platform.  Therefore, the First Department held the metal deck flooring’s collapse demonstrates a violation of Labor Law § 240(1).

PRACTICE POINT:  And thus we have here the sole proximate cause defense flying out the window.  It is not a defense if the plaintiff was a proximate cause of the accident and injury, that would be comparative fault which is not a defense to a 240(1) case.  This is a lesson learned by every attorney in the fourth who ever appeared before a panel with Justice Green, who always asked you the same trick question.  What Justice Green would ask, half way through your argument, all while appearing to agree with your every argument was; so Mr. Adams, what you are telling me is that the plaintiff had some negligence here?  Notice the ice cracking beneath your feet at this exact second.  If you answer “yes hour honor, how perceptive of you” you have signed your own execution order.  While this never happened to me (really, it did not!) I have seen it more than once, and the judge’s response is always the same; thought that was what you meant, but remember that this is an absolute liability statute and that there is no comparative fault here, I think we have heard enough.  Difficult phone call to follow.  Where there is a violation of the statue which was a proximate cause of the accident, nothing else can be the sole proximate cause.

Labor Law § 241(6) (JAE)
Since Bisram was provided with certain safety devices addressed in 12 NYCRR 23—1.16(f)(1), and the devices failed to protect him from injury; thus, his Labor Law § 241(6) claim predicated on a violation of that Code provision was sustained.  However, the Labor Law § 241(6) claim predicated on a violation of 12 NYCRR 23—1.7(b)(1)(i) and (iii) was dismissed since the area through which Bisram fell — between the beams — when the beam beneath the metal decking on which he was standing shifted did not constitute a hazardous opening within the meaning of 12 NYCRR 23—1.7(b)(1)(i).
Labor Law § 200 and Common-Law Negligence (VCP)

The First Department dismissed plaintiff's Labor Law § 200 and common-law negligence claims, holding that although the plaintiff established that the general contractor may have coordinated the subcontractors at the work site or told them where to work on a given day, and had the authority to review onsite safety, those responsibilities do not rise to the level of supervision or control necessary to hold the general contractor liable for plaintiff's injuries under Labor Law § 200.

Kolb v Lambert
April 10, 2014
Appellate Division, First Department

Kolb, a carpenter who was performing renovation work at defendant owner Royal Lambert’s premises (Lambert), allegedly was injured when he tripped and fell over a 1” to 1 ¼” flooring differential at a six-foot wide entranceway that separated the kitchen and sunken living room.  Kolb alleged that the height differential, was due to the kitchen floor having been removed as part of the renovation, and had existed for at least several days during which time Lambert visited the premises on several occasions. 

Kolb filed this action against Lambert alleging common-law negligence and violations of Labor Law §§ 200 and 241(6).  Lambert moved for summary judgment dismissing Kolb’s complaint, in part by arguing his property qualified for the homeowner exemption under § 241(6), applicable to one or two-family dwellings.  The trial court denied his motion, and he appealed.  

Labor Law § 241(6) (JAE)

The First Department found that the owner had abandoned on appeal any argument that his property qualified for the homeowner’s exemption under Labor Law § 241(6) claim.   Factual issues were also raised to preclude summary judgment as to whether the Industrial Code provision pertaining to “tripping conditions” in “passageways” (see [12 NYCRR] § 23-1.7[e][1], [2]) applied to afford plaintiff protection under Labor Law § 241(6).

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

The motion court properly denied the portion of defendant owner Royal Lambert's motion seeking dismissal of the claims for violation of Labor Law § 200 and common law negligence.  Plaintiff, a carpenter performing renovation work at the owner's premises, was injured when he tripped and fell over a 1″ to 1 1/4″ flooring differential at a six-foot wide entranceway that separated the kitchen and sunken living room. This height differential, due to the kitchen floor having been removed as part of the renovation, had existed for at least several days during which time the owner visited the premises on several occasions. Thus, there are triable issues as to whether owner had notice of the alleged hazard.

 

Suconota v Knickerbocker Props., LLC
April 10, 2014
Appellate Division, First Department

Sunconta, a mason, alleged was injured in an accident although we do not know how.  He filed this action alleging for common-law negligence and Labor Law § 200 against the construction manager, Mega Contracting, Inc. (Mega), who filed brought an indemnification claim against plaintiff's employer, second third-party defendant Flagge Contracting, Inc. (Flagge).  Sunconta testified that he worked solely under the supervision of Flagge's foreman, and did not receive any direction from anyone else and had never even heard of Mega. 

Mega’s construction management agreement with Flagge contained and indemnity provision requiring Flagge to indemnify Mega for all claims “directly or indirectly arising out of, resulting from or related to the negligent act, omission or breach of contract of [Flagge] ... or any individual ... directly or indirectly employed by [Flagge].”  Mega move for summary judgment on Sunconta’s common-law negligence and Labor Law claims, and on its indemnification claims.  The trial court granted Mega’s motion.  Flagge appealed.

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

Where, as here, a construction accident arises out of the means and methods of plaintiff's work, liability for common-law negligence or under Labor Law § 200 may be imposed against an owner or general contractor if it actually exercised supervisory control over the injury-producing work.  Here, defendant Mega Contracting satisfied its burden of establishing that it did not control the work that caused plaintiff's accident. Plaintiff testified that he worked solely under the supervision of his employer's foreman, did not receive any direction from anyone else and had never even heard of Mega, the construction manager. 

 

Indemnity Issues in Labor Law (SEP)

Mega also moved for summary judgment seeking an award of contractual indemnification against Flagge.  As noted above, Mega established that plaintiff did not possess a valid negligence claim against it, thus the sole question was whether the terms of the contract between Mega and Flagge were satisfied.  The Mega/Flagge indemnity provision required Flagge to indemnify Mega for any loss arising out of the negligent act, omission or breach of contract of Flagge or an employee of Flagge. 

In the current case, either Flagge was negligent, or, on the other hand, plaintiff (as an employee of Flagge) was negligent.  Under either scenario, however, the indemnity provision was triggered, and Flagge was contractual responsible to assume any exposure facing Mega. 

Hettich v 125 E. 50th St. Co., LLC
April 15, 2014
Appellate Division, First Department

Hettich was working on the replacement of a controller for a dumbwaiter, and allegedly was injured when the dumbwaiter's hoist cable broke, causing the dumbwaiter (with Hettich inside) to plunge 40 feet.  The limited maintenance contract between defendants and plaintiff's employer, third-party defendant Nouveau Elevator Industries, Inc. (Nouveau), included inspection of hoist cables, but it did not include replacement of a controller.  Moreover, at Nouveau, maintenance and repair were separate departments, and Hettich was not the regular maintenance mechanic whom Nouveau assigned to defendants' premises.

Hettich filed this action alleging common-law negligence and Labor Law §§ 200 and 240(1) against Defendant property owners.  Defendants’ moved for summary judgment dismissing the complaint, and plaintiff moved for summary judgment on liability.  The trial court granted Defendants’ motion and denied Hettich’s motion.  Hettich appealed the decision.

Labor Law § 240(1) (DRA)

The First Department, citing Garcia v Neighborhood Partnership Hous. Dev. Fund Co., Inc., held that genuine issues of material fact existed as to whether the condition of the dumbwaiter's hoist cable posed an elevation-related risk, precluding summary judgment in favor of defendant building owner.

PRACTICE POINT:  The court’s reliance on Garcia in an opinion without explanation provides us with all the reasoning we need.  Recall that Garcia (in our February edition as I am sure you already knew) is the first’s case where the collapse of a permanent structure was discussed and the key element, foreseeability, described as follows; A plaintiff in a case involving collapse of a permanent structure must establish that the collapse was "foreseeable," not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk.  Thus, the issue with the failure of the cable as to the owner is, was it foreseeable the cable would fail and expose the plaintiff to an elevation related risk.  That is a question the court left to the jury.

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

The First Department determined that the cause of the plaintiff's injury was not the manner in which plaintiff performed his work, but rather was the result of a dangerous condition on defendants' property, namely, the malfunctioning hoist cable.  The record demonstrated that if the hoist cable had been functioning properly, it would not have snapped, even with plaintiff in the dumbwaiter. Thus, the test under Labor Law § 200 and the common law is whether the defendants created or had notice of the dangerous condition, and issues of fact precluded summary judgment for either side. There was conflicting evidence as to whether the old, failing hoist cable was actually replaced before plaintiff's accident

Patino v Drexler
April 15, 2014
Appellate Division, First Department

Patino allegedly was injured while working on defendants’ property and filed this action alleging violation of Labor Law § 241(6).  The owners moved for summary judgment dismissing Patino’s complaint asserting the homeowners’ exemption and under CPLR § 3212(f) before discovery claiming Patino failed to timely submit discovery demands.  Patino opposed by arguing that discovery was needed to determine whether the premises were used for commercial or investment purposes, and that there were facts unavailable to Patino essential to justify opposition.  The trial court denied the motion, and the owners appealed.

Labor Law § 241(6) (JAE)

The First Department found that the motion court erred in denying defendants’ motion on the merits.  Under the homeowner exemption, “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from liability under Labor Law § 241(6). Here, defendants established that the premises was a single-family dwelling by submitting affidavits stating that they purchased the premises solely as a second residence for use by family and guests, that they had never used any of the portion of the premises for a commercial purpose, and that the barn in which Patino was injured was being converted into a recreational room for personal use.  Moreover, the affidavits of Patino’s employer and supervisor stating that they supervised Patino’s work and provided Patino with the tools for his work, including the saw that caused his injuries, along with defendants’ affidavits stating that they were not on site during the construction work, show that defendants did not direct, supervise, or control Patino’s work.

Patino failed to raise a question of fact based on his own affidavit, which was not properly notarized and signed, asserting that three different unrelated families, including defendants’ family, the household staff, and the groundskeeper lived at the premises.  As defendants and their staff were “living together and maintaining a common household,” the exemption still applied.

Carrera v Westchester Triangle Hous. Dev. Fund Corp.
April 22, 2014
Appellate Division, First Department

Carrera testified that he and two coworkers were carrying a metal pipe on their shoulders when he slipped on a muddy surface and tripped on an object that he speculated was a rock.  He lost his ability to support the pipe, which caused his coworkers to drop it; the pipe then “jumped” and hit him on his left ear, neck and shoulder.

Carrera filed this action alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6) against defendants Westchester Triangle Housing Dev. Fund Corp., Integrated Building Systems Inc., Westchester Triangle, LLC, J&R Masonry, Inc. and A. Enrico Contracting Corp. (collectively “Defendants”).  Defendants’ filed motions for summary judgment dismissing Carrera’s complaint and cross-claims as against them.  Carrera cross-moved for leave to amend his bill of particulars and for summary judgment on his common-law negligence and Labor Law claims.  The trial court denied all motions.

Labor Law § 240(1) (DRA)

The First Department, citing Runner, held Labor Law § 240(1) is inapplicable to this case because Carrera's injuries were not “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” 

PRACTICE POINT:  Once again I applaud the court, here the first, for taking a stand against a tortured set of fact trying to make a labor law case out of a simple ordinary work site risk and not the type of risk the statute was developed to protect against.  First of all, what type of case is it, a falling object case?  His end of the pipe did not fall but rather bounced when the other end was dropped.  More importantly, if in fact you want to consider the pipe a falling object, how was it to be secured while being carried on the shoulders of workers, strap it to the worker?  The lablr law was simply not designed to protect against this type of risk.

 

Labor Law § 241(6) (JAE)
Industrial Code (12 NYCRR) §§ 23-1.7(d),(e) and (f) and 23-1.23(a) were held inapplicable to this case.  Contrary to Carrera's contention, the open, unpaved area where he was walking when he fell was not a “passageway” within the meaning of § 23-1.7(d) or § 23-1.7(e)(1). Section 23-1.7(e)(2) is inapplicable because, by his own testimony, Carrera was walking in an outdoor area where the ground was composed of dirt and rocks.  To the extent he tripped over a rock after he initially slipped, the rock was part of the surface of the ground and cannot be considered accumulated “debris.” Thus, § 23-1.23(a) does not apply, because Carrera's accident did not occur on an earth ramp or a runway.
Carrera was also not entitled to amend his bill of particulars to allege a violation of section 23-1.7(f), because the area where his accident occurred did not require him to gain access to “working levels above or below ground.”
Labor Law § 200 and Common-Law Negligence (VCP)

The First Department overturned the trial court and ruled that plaintiff's Labor Law § 200 and common-law negligence claims against defendants J & R Masonry, Inc. and A. Enrico Contracting Corp. should have been dismissed. These defendant subcontractors established entitlement to summary judgment by eliminating all material issues of fact regarding whether they created the alleged dangerous condition that led to plaintiff's accident.   Plaintiff’s contention that that slippery condition of the floor was a caused by a hose used by J & R Masonry to mix cement was disregarded as purely speculative.  Further, plaintiff did not produce any evidence that A. Enrico Contracting Corp. created the alleged steep slope or ramp on which he fell, and could not dispute A. Enrico's evidence that it had already completed its excavation and leveled off the area and its work had been inspected and approved by the general contractor before plaintiff's accident.

As for the common-law negligence and Labor Law § 200 claims against Westchester Triangle Housing Development Fund Corporation, Integrated Building Systems, Inc., M. Melnick & Co., Inc., and Westchester Triangle, LLC (Builder Defendants),  these defendants were not entitled to summary dismissal on these claims to the extent they are predicated on the theory of constructive notice of a dangerous condition. While plaintiff did not know exactly what caused the trip or slip that led to his injury, he testified that the dirt area where he fell was, for at least two weeks, wet, steeply sloped, uneven, and covered in rocks, debris, and holes. As such, material issues of fact exist regarding whether the area's condition was dangerous and whether this condition existed for a sufficient length of time for these defendants to inspect and remedy the danger.

Morocho v Plainview-Old Bethpage Cent. Sch. Dist.
April 23, 2014
Appellate Division, Second Department

Morocho allegedly was injured when he fell off a ladder while affixing plastic sheeting over certain light fixtures as part of an asbestos abatement project, which defendant school district hired Morocho's employer to perform.  Morocho’s 50-h hearing revealed that he selected, and then carried and set up, an A-frame ladder in the area where he was to perform his work.  There was no dispute that the ladder was properly placed and in working order and Morocho performed his work without incident for a period of time.  At some point, a coworker, while cleaning up the discarded plastic sheeting that was littering the floor, pulled a piece of the sheeting, causing it to become entangled with the ladder, and thereby causing the ladder and Morocho to fall.

Morocho filed action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).  The trial court granted that branch of the school district's motion which was for summary judgment dismissing the § 240(1) claim, and denied Morocho’s cross-motion for summary judgment on the issue of liability on that same claim.  Morocho appealed.

Labor Law § 240(1) (DRA)

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites.”  To prevail on an alleged violation of Labor Law § 240(1), “a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries.”  Here, the Second Department held that Morocho’s deposition testimony established, prima facie, that § 240(1) was violated and that the violation was a proximate cause of his injuries. 

In opposition, the school district argued that Morocho’s coworker's actions were the sole proximate cause of the accident.  The Second Department rejected this assertion, reiterating that an "independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed to them."  Here, the Second Department held the coworker's acts were neither of an extraordinary nature nor so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve the school district of liability.  Accordingly, the Second Department held the trial court should have denied the school district’s motion, and granted Morocho’s cross-motion for summary judgment on the issue of liability.

PRACTICE POINT:  A novel approach arguing that a co-worker was the sole proximate cause of the accident by pulling the plastic sheet.  The superseding intervening argument is common in many areas of the law but this is the first I have seen it in a labor law case and I applaud the inventive minds of our friends at Congdon Flaherty, unfortunately where the issue really becomes the placement of the ladder the courts have, almost unanimously, held that placement of the ladder, a violation the statue, is a proximate cause of the accident thus precludes any other potential cause of the accident from being the “sole” proximate cause. 

 

Soto v Deco Towers Assoc., LLC
April 24, 2014
Appellate Division, First Department

In a case with barely any facts, Soto allegedly was injured due to improper stacked boxes as a result of defendants construction work.  Soto filed this action alleging common-law negligence and violations of the Labor Law against defendants, who initially moved for summary judgment dismissing that claim.  The trial court granted defendants’ motion.  Soto moved to reargue the motion, and the trial court reinstated Soto’s common-law negligence action.

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

The First Department ruled that questions of fact exist concerning whether defendants performed the construction work and, in doing so, improperly stacked the boxes that allegedly injured plaintiff. Plaintiff was not required to show that the defendants supervised and controlled his work, as this case involves an allegedly dangerous condition, not the means and methods of the work.

Serra v Goldman Sachs Group, Inc.
April 29, 2014
Appellate Division, First Department

After bringing a complaint alleging violations of Labor Law §§ 240(1) and 241(6), Serra testified that the unsecured extended ladder upon which he was working slipped and fell out from underneath him.  Serra moved for partial summary judgment on his § 240(1) claim.  Defendants cross-moved for summary judgment seeking dismissal of the §§ 240(1) and 241(6) claims, and also moved to compel Serra to provide authorizations allowing defendants to obtain all medical records pertaining to his psychological condition and treatment.  The trial court denied defendants’ motions, granted Serra’s motion with respect to his § 240(1) and upon a search of the record, also granted him summary judgment on his § 241(6) claim.   Defendants’ appealed.

Labor Law § 240(1) (DRA)

The Second Department affirmed the trial court’s decision since plaintiffs un-contradicted deposition testimony established that the unsecured extended ladder upon which Serra was working slipped and fell out from underneath him.  Further, the Second Department held that Serra’s actions were not the sole proximate cause of his accident since his testimony established that his coworker, unbeknownst to him and in departure from their normal procedure, stopped footing the base of the ladder while Serra was still climbing it, thereby allowing it to slip out from underneath him. 

Moreover, the Second Department affirmed the trial court’s exercise of its discretion in denying defendants' motion to compel, since Serra did not seek to recover damages for emotional or psychological injury, or aggravation of a preexisting emotional or mental condition.  According to the Second Department, Serra’s bill of particulars alleged damages for specific physical injuries in his lower back, and his inclusion of general allegations of "anxiety and mental anguish" resulting from his back injuries did not place his entire mental health history into contention.

PRACTICE POINT:  Plaintiff was on a ladder, the ladder moved, the plaintiff fell, what is different about this case from the dozens of identical cases we have seen before, only that the second saw fit to mention that the plaintiff was not the sole proximate cause since a co-worker stopped holding the bottom of the ladder.  Are we seeing the start of a deepening responsibility on the part of the plaintiff not to be responsible for the placement of the ladder, or for using a ladder when no one is holding the base of the ladder.  What the opinion does not address is if the plaintiff had been instructed not to climb a ladder when it was not held at the base by a co-worker, then his lack of knowledge that the co-worker was no longer holding the base would preclude a sole proximate cause defense.

 

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

Regulation § 23–7.1 governing personnel hoists, upon which injured worker relied on in bringing an action against the company which installed the hoist, was held merely a general safety standing insufficiently to sustain a Labor Law § 241(6) cause of action (Wade v Bovis Lend Lease LMB, Inc., supra).
Regulation § 23–8.2 containing specific safety prescriptions for mobile cranes, held applicable where plaintiff’s accident was caused by Gradall, which is capable of functioning both as forklift and mobile crane depending on the type of attachment used and was functioning as a mobile crane at the time of the accident (McCoy v Metropolitan Transp. Auth., 38 AD3d 308 [1st Dept 2007]).  Conversely, regulation § 23–8.2 held inapplicable where plaintiff was struck by a tree branch and there was no evidence that the accident was caused by the crane or that the crane came in contact with the trees (Roosa v Cornell Real Prop. Servicing, Inc., supra).
Regulations § 23–8.2(b)(1) and (b)(2) regulating the use and placement of footings and outriggers on mobile cranes, were held sufficiently specific to support a Labor Law § 241(6) cause of action (Tillman v Triou’s Custom Homes, Inc., 253 AD2d 254 [4th Dept 1999]).
Regulation § 23–8.2(b)(2)(iii) requiring each outrigger on a mobile crane be visible from its actuating location, was held sufficiently specific to support a Labor Law § 241(6) cause of action (Mitchell v Triborough Bridge and Tunnel Auth., 220 AD2d 727 [2d Dept 1995]).
Regulation § 23–8.2(c)(3) requiring a restraint line when swinging of any load being hoisted by a mobile crane may create a hazard, was held sufficiently specific to support a Labor Law § 241(6) cause of action and applicable where plaintiff’s head became pinned between a piece of sheetrock and the wall during unloading operations (Smith v Hovnanian Co. Inc., 218 AD2d  68 [3d Dept 1995]; held applicable where injury occurred when beam, which had already been hoisted off the ground, was being propelled forward; when heavy object being moved from one spot to another because 8.2(c)(3) is not limited to only that part of operations in which the object is being lifted vertically (McCoy v Metropolitan Transp. Auth., supra); and held potentially applicable where plaintiff was injured by bundle of wire mesh rebar being lifted over his head by crane on back of his truck and defendant failed to establish that injuries were not caused by rotation or swinging of the load (Locicero v Princeton Restoration, Inc., supra).
Regulation § 23–8.2(c)(3) held inapplicable where plaintiff, who was unloading steel beams from flatbed truck, allegedly was injured when wooden pole he was using to unload the beams by pushing the beams off the side of the trailer of the flatbed truck sprung up and hit his head (Toefer v Long Island R.R., 4 NY3d 399 [2005]).
A genuine issue of fact existed as to whether regulation § 23–8.2(d)(3), requiring that a “mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab”, precluding summary judgment for contractor in action brought by employee of subcontractor who allegedly was injured as a result of a crane accident (Braun v Fischbach and Moore, Inc., 280 AD2d 506 [2d Dept 2001]).
Regulation § 23–8.2(e) governing counterweights for mobile cranes, was held sufficiently specific to support a Labor Law § 241(6) cause of action (Tillman v Triou’s Custom Homes, Inc., supra).
Regulation § 23–8.2(f)(2) governing braking mechanism, requires every mobile crane shall be provided with the following: (i) “An adequate braking mechanism for the boom hoist” was held merely a general safety standard insufficient to sustain a Labor Law § 241(6) claim.  However, regulation § 23–8.2(f)(2)(ii) requiring “a swing lock or swing brake capable of preventing rotation and (iii) requiring “A brake or other equivalent device adequate to bring the mobile crane to a stop from any travel for which such crane is designed, together with a means of locking such mobile crane so as to hold it stationary”, were inapplicable where plaintiff allegedly was injured when, while he was working on a truck crane at a construction site, the boom of the crane slipped and crushed his arm (Thompson v Ludovico, supra). 

Regulation § 23–8.2(g)(1)(ii) requiring consideration of factors affecting crane stability such as freely suspended loads, track, wind or ground conditions, condition and inflation of tires, boom lengths and proper operating speeds, held inapplicable where hoisted girder’s dangerous swinging caused by crane operator’s rolling crane forward with girder still hoisted (Long v Tishman/Harris, 50 AD3d 356 [1st Dept 2008]).

Hurwitz & Fine, P.C. is a full-service law firm
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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

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