Labor Law Pointers
Volume IV, No. 10
Wednesday, August 5, 2015
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation, we love situations. When I started using that as the opening for our labor law newsletter I basically stole it from Dan Kohane and his Coverage Pointers newsletter. I did get a few calls per week with interesting issues, or situations, but I had no idea what was in store for us. My phone now rings, or my email dings, at least once a day with a situation of issue. Those of you who have called or emailed with a “situation” know that I love it. The more complex the better we like it. Call my cell, anytime, the number is 716-553-6901, I always answer unless in court or a deposition, and we will get you a response to your situation quickly.
Summer has officially arrived in Buffalo, it has been hot and the grass has finally stopped growing by inches every week. The courts are in their summer slowdown, giving me more time to actually cut the lawn. We have some, but only a few, interesting cases for you this week.
The First found for a plaintiff who, in spite of having enough room to set up his A-frame ladder appropriately decided to lean it against the side of a tank where it surprisingly slid out from under him causing him to fall. His reason for leaning the ladder against the tank instead of opening it the correct way was that had he opened the ladder he would have had to face the side of the ladder and twist sideways to weld the tank which would have been slower and hurt his back. The court agreed with the plaintiff and awarded him Summary Judgment but one judge dissented. Read the Noor case below.
Remember that anyplace within our newsletter all you need to do is press Ctrl and click on any of the hyperlinks and they will take you to the actual case on the official court site, to the specific section of the labor law or even to create an email to any of us just but clicking on our name or initials.
We continue to offer seminars or webinars to all our readers at your convenience. We have multiple topics available and enjoy the interaction with our readers.
That is about it for this month, enjoy the rest of your summer and by all means feel free to contact us with any question or “situations”.
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.
Noor v City of New York
July 28, 2015
Appellate Division, First Department
Noor leaned a closed A-frame ladder against a recently-installed water tank on which he was welding a seam. He was unable to fully open the ladder with the rungs parallel to the tank, which would have enabled him to directly face the area he needed to weld. There were no issues with the ladder itself. After completing his work, Noor began descending the ladder but before he could finish taking the first step the ladder “shook”. As Noor tried grabbing the top of the tank, the ladder “knocked” him onto the floor below the platform. Noor testified that the ladder moved because he had placed it on top of electrical wires and pipes that were arrayed on the platform although he initially testified at his 50-h exam he did not know what caused the ladder to move.
The trial court granted Noor’s motion for a directed verdict on his Labor Law § 240(1) claim following the close of evidence in a bifurcated trial, stating that Noor and his coworkers believed they were expected to work with an A-frame ladder in the closed position, since that is how they had always worked. The trial court also held the ladder was the only equipment Noor had been provided with and it was inadequate for the task at hand and the lack of an adequate safety device proximately caused the incident.
The jury found defendant Aspro Mechanical, the general contractor, but not the owner, the City, negligent and violated Labor Law § 200 but that such negligence and violation did not proximately caused the incident. The jury found no violation of § 241(6) predicated on § 23-1.21(e)(3) since “the platform where plaintiff placed the A-frame ladder was a substantial factor in causing his incident. The jury determined Noor was 55% at fault; Aspro 35% and the City 10%. However, the court deemed the verdict to have found Noor 100% since it determined neither the City nor Aspro’s actions substantially contributed to the incident.
The majority held that defendants failed to establish that the pipe scaffold Noor and his coworkers used to erect the tank but which had been removed from the room before they began welding would have been a suitable safety device because the burden was on them to elicit evidence that the scaffold would have enabled Noor to carry out his welding work. Nor did defendants establish that Noor was a recalcitrant worker since they failed to offer any evidence that he was actually instructed to use the pipe scaffold.
The majority thus held that defendants violated the statute by giving Noor no option but to use the ladder in that dangerous position to perform the task at hand and affirmed the trial court’s directed verdict in favor of Noor. The fact that the jury found Noor comparatively negligent under his 200 claim is immaterial as “it is conceptually impossible for a statutory violation to occupy the same ground as a plaintiff’s sole proximate cause for the injury.
Justice DeGrasse’s dissent focused on the fact that the platform was wide enough to enable Noor to use the ladder in a secure open position. Thus, the dissent believed there is at least a factual issue as to whether the statute was violated because the claimed inadequacy of the ladder does not implicate the effects of gravity but rather relates to Noor’s ability to weld the water tank without discomfort.
The dissent noted Noor’s trial testimony that incident was caused by the ladder’s placement on debris that was on the platform was impeached by his 50-h testimony and thus the jury could have rejected the trial testimony and found the cause of the incident was undetermined, which, according to Justice DeGrasse would have been notable because “[w]here a plaintiff is injured in a fall from a ladder, which is not otherwise shown to be defective, the issue of whether the ladder provided the plaintiff with the proper protection required under the statute is question of fact for the jury.”
Justice DeGrasse also believes the issue of sole proximate cause should have been submitted to the jury based on the undisputed testimony that Noor fell from a closed, unsecured A-frame ladder that he himself had leaned against the water tank because such placement of an unsecured A-frame ladder can constitute misuse of a safety device and Noor’s excuse is simply one factor that the jury should have been allowed to consider along with the other evidence in order to determine whether his actions were the sole proximate cause.
PRACTICE POINT: Two important points here. First; always utilize an expert to establish that a safety device is appropriate for the task at hand, absent an admission from the plaintiff that it is appropriate and would have prevented the injury you will need an expert to establish that element of the defense. Second; it is possible that the courts are moving towards holding the plaintiffs move responsible for their decisions leading to more options for a sole proximate cause defense. Here the dissent actually find that the fact that the plaintiff placed the ladder himself in a position which caused the ladder to slip, and the ladder was not defective in any way, that sole proximate cause should have been a question of fact for the jury to determine. While this is not changing the way that sole proximate cause is established as of now, it is what I consider a step in the right direction.
Montenegro v P12, LLC
July 8, 2015
Appellate Division, Second Department
Montenegro, a carpenter, was using a pneumatic nail gun to attach molding around a window when he was allegedly hit in the left eye with a nail. The trial court granted defendant’s motion to dismiss the Labor Law 241(6) cause of action.
Labor Law § 241(6) (JAE)
The appeal only related to12 NYCRR 23-1.8(a), and the Second Department held that the trial court erred in granting defendant’s motion. 12 NYCRR 23-1.8(a) requires the furnishing of eye protection equipment to employees who, inter alia, are “engaged in any . . . operation which may endanger the eyes.” Defendant’s submissions failed to eliminate a triable issue of fact as to whether, at the time of Montenegro’s incident, he was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to 12 NYCRR 23-1.8(a). In other words, triable issues of fact existed as to whether Montenegro’s use of a pneumatic nail gun at the time of the incident made the possibility of injury to his eye sufficiently foreseeable so as to require eye protection. Moreover, there was a triable issue of fact as to whether approved eye protection was provided to him on the date of the accident. Accordingly, the court reversed and reinstated the claim.
Haines v Verazzano of Dutchess, LLC
July 22, 2015
Appellate Division, Second Department
Haines sustained injury on defendant’s premises, and brought this Labor Law action alleging violation of § 240(1). Defendant moved for summary judgment based on Workers’ Compensation Law §§ 11 and 29(6), and Haines cross-moved on the issue of liability. The trial court granted defendant’s motion and denied Haines’ cross-motion.
The Second Department affirmed dismissal of Haines’ complaint because defendant prima facie established that it was the alter ego of Haines’ employer, since the two companies operated as a single integrated entity.
PRACTICE POINT: To qualify as an alter ego the defendant must establish that one of the entities the other or that the two operate as a single integrated entity. This is a factual determination and in order to use this defense it is critical to remember to plead workers compensation section 11 as an affirmative defense.
Salzer v Benderson Dev. Co., LLC
July 9, 2015
Appellate Division, Third Department
Salzer and others employed by third-party defendant were installing rooftop HVAC units at defendants’ shopping complex. Salzer was standing on the roof of one of the buildings, using hand signals to direct a crane operator when he stumbled while trying to face the crane operator and, in doing so, fell from the roof.
The trial court granted defendants’ cross-motion to dismiss the common-law negligence and Labor Law §§ 240(1), 241(6) and 200 claims finding that Salzer’s injuries did not flow from an elevation-related hazard as he was not “required to work at an elevation” and could have stayed away from the edge of the roof by directing the crane operator via cell phone. The court also denied Salzer’s summary judgment motion on his 240(1) claim.
The Third Department held that Salzer may invoke the statutory protections regarding of the fact that he was a part owner of third-party defendant. The Third Department disagreed with the trial court’s determination that Salzer could have directed the crane operator via cell phone as it was undisputed that Salzer had to work somewhere on the roof in order to signal the crane operator and that hand signaling was the usual method to do so.
The court also rejected defendants/third-party plaintiffs’ argument that Salzer was provided with an appropriate safety device as “a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute.” The court noted the failure to identify another safety device that could have prevented Salzer’s fall is irrelevant in establishing liability under the statute.
As a result, the court held Salzer’s motion for summary judgment should have been granted as he fell because his work required him to work at a height and “there is no view of the evidence to dispute or contradict a finding that the absence of safety equipment was a proximate cause of his injuries.”
PRACTICE POINT: The claim that the plaintiff did not identify what safety device would have prevented the accident is not an appropriate defense to a 240(1) claim. A major point to retain from this case is that a permanent portion of the building cannot, under normal circumstances, be considered a safety device such as a ladder, scaffold or other safety device as required under the statute,
Scribner v State of New York
July 9, 2015
Appellate Division, Third Department
Scribner was responsible for collecting pieces of roof tile removed by his coworkers further up on a roof on the State Capital building. Larger tile pieces were handed down to Scribner while smaller pieces would slide down the roof and accumulate on a flat stone ledge where he was standing. While collecting the pieces, he became “tangled up in them” and fell onto the scaffolding.
In his bill of particulars, Scribner’s spouse claimed the scaffolding was two feet below the ledge while Scribner and the project manager asserted in their depositions that the scaffolding was four to five feet below the ledge. The Court of Claims dismissed certain portions of the Labor Law § 241(6) claim, and granted the claimant’s cross-motion partial summary judgment on the issue of liability on the § 240(1) claim.
The Third Department held regardless of whether the height differential was two, four or five feet; Scribner’s fall is the type of elevation-related risk for which the statute applies. Further, the parties’ expert submissions raised a question of fact as to whether the scaffolding afforded adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries.
Defendant’s expert opined that due to the relatively short height differential, scaffolding was the only available safety device and that it functioned properly by preventing Scribner was falling over a hundred feet to the ground. Conversely, claimant’s expert asserted that the scaffolding, as erected, was inadequate and that the injuries could have been prevented if the scaffolding had been raised, a temporary railing had been added along the ledge or a temporary vertical barrier had been installed to prevent smaller tile pieces from accumulating in his walkway.
PRACTICE POINT: There is no surprise here as each party had an expert who opined either that the safety device, the scaffold, was appropriate and the only available option for the defendants or that it was insufficient and that other safety devices should have and could have been utilized. There can be no surprise then that the court held that questions of fact exist precluding the court from finding for either party.
As relevant here, claimant’s Labor Law § 241 (6) claim was predicated on purported violations of three regulations: 12 NYCRR 23-1.7 (b) (1), which regulates the safety precautions that must be taken to avoid injuries resulting from hazardous openings; 12 NYCRR 23-1.7 (e) (2), which requires that work areas be kept free of debris, scattered tools and materials “insofar as may be consistent with the work being performed”; and 12 NYCRR 23-1.15, which sets forth the safety railing specifications required to protect against hazardous openings.
These regulations, however, were inapplicable as a matter of law, as the drop from the roof ledge where Scribner was working to the scaffolding on which he fell did not qualify as a “hazardous opening”, and the tile pieces over which Scribner tripped were materials involved “in the actual task he was performing”. Accordingly, defendant was entitled to summary judgment dismissing the Labor Law § 241 (6) claim in its entirety.
Hackert v Emmanuel Cong. United Church of Christ
July 16, 2015
Appellate Division, Third Department
After a church was damaged by a fire from a lighting strike, defendants Rivercrest was hired as the general contractor by owner Emmanuel Congregation to rebuild the church. Rivercrest’s employees were supervised daily by third-party defendant Clyde Wilson. The church also hired Church Organ to install a new organ, and its president, plaintiff Hackert, hired Helms, who performed audio and visual work for the church, to install the speaker cables for the new organ.
During the renovation work, there was a hole in the floor of the church being utilized by Rivercrest employees and subcontractors to pass building material from the basement to the main level. The hole was covered with plywood but not nailed or screwed into place. Wilson placed Caldwell, a Rivercrest employee, in charge of “making sure the hole was covered every night before he left the church.” As Hackert measured lengths of wire, he walked backwards toward the opening and fell through the basement.
After the first-party action was settled, the trial court denied Wilson’s motion to dismiss the third-party complaint and his motion for summary judgment on his fourth-party action against Rivercrest’s carrier, Erie, for a declaration that he was an employee of Rivercrest and thus entitled to defense and indemnity under Rivercrest’s policy with Erie. The trial court also denied Erie’s cross-motion to dismiss the fourth-party complaint, finding a question of fact as to Wilson’s employment status, and denied Rivercrest’s cross-motion for indemnification from Wilson based his alleged status as an independent contractor.
Indemnity Issues in Labor Law (SEP)
Despite settling the main-party action, Rivercrest proceeded with its claim for common-law indemnity against Wilson. The court noted that as a settled party, Rivercrest is still only entitled to common law indemnity if it can show its liability was purely derivative. Here, there was a question of fact as to whether Rivercrest bore some level of actual responsibility for the loss. Where Rivercrest was unable to exonerate itself from negligence in its motion papers, its motion for indemnity failed on a question of fact.
Wilson, the target of Rivercrest’s motion, cross-moved for summary judgment on the grounds that it was not negligent. Essentially, regardless of Rivercrest’s possible fault, Wilson argued that it was no responsible for the loss, and as such owed no indemnity obligations. Because, however, Wilson was the supervisor of the project and was responsible for site safety, the Court found a question of fact as to its possible negligence as well.
Burns v Lecesse Constr. Servs. LLC
July 2, 2015
Appellate Division, Fourth Department
Burns allegedly fell down a stairway in an apartment complex under construction when he tripped on a drywall screw sticking out of the top of the stairway. Defendants Mills and Urban League jointly owned the apartment complex. Lecesse was the general contractor, Dukes the finish carpentry subcontractor, U.S. Ceiling the drywall insulation contractor, and defendant/third-party Pro Carpet the flooring subcontractor. Pro Carpet subcontracted work to third-party defendant Jeffrey Burns d/b/a Burns Flooring, and Pro Carpet filed a third-party complaint for contractual indemnification.
The trial court granted Pro Carpet’s motion to dismiss the complaint and cross-claims against it, and sua sponte dismissed the third-party complaint. The trial court also denied the motions of Dukes, U.S. Ceiling and the Lecesse defendants’ for summary judgment dismissing the common-law negligence and Labor Law §§ 200 and 241(6) claims. The trial court further granted Burns’ motion seeking partial summary judgment determining the accident was a substantial factor in causing his lumbar spine injuries.
Labor Law § 241(6) (JAE)
With respect to the Labor Law § 241 (6), the Fourth Department held the trial court properly denied that part of the cross-motion of the Lecesse defendants for summary judgment dismissing that claim against them to the extent that it is premised on the alleged violations of 12 NYCRR 23-1.7 (e) and 23-1.30. Those regulations are sufficiently specific to support the claim, and both regulations are applicable to the facts of this case and arguably were violated by the Lecesse defendants, thus warranting a trial of that claim.
The trial court erred, however, in denying that part of the cross-motion to dismiss the remainder of § 241(6) claim against the Lecesse defendants. The Occupational Safety and Health Act regulations Burns cited cannot support that claim, and he did not address any of the other violations of the Industrial Code that were alleged in his second amended bill of particulars in opposition to the cross motion.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department reversed in part, holding the trial court also erred in denying the motion of Dukes and the cross-motion of U.S. Ceiling for summary judgment dismissing the Labor Law § 200 claim against them, holding that Dukes and U.S. Ceiling, as subcontractors without control of Burns’ work or ongoing control of the area in which he was injured, cannot be held liable under Labor Law § 200. However, the Fourth Department affirmed the trial court’s denial of their motions with respect to the common-law negligence claims against them. Neither of those defendants met its burden of establishing its entitlement to judgment dismissing that claim. As subcontractors, either Dukes or U.S. Ceiling may be held liable for negligence where the work it performed created the condition that caused Burns’ injury even if it did not possess any authority to supervise and control his work or work area.
The Fourth Department further held the trial court properly denied the cross-motion of the Lecesse defendants insofar as it sought dismissal of the Labor Law § 200 and common-law negligence claims against them. Inasmuch as Burns alleges the incident occurred as the result of a dangerous condition on the premises, any issue as to whether the Lecesse defendants supervised or controlled plaintiff's work is irrelevant. The Lecesse defendants were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises. The court determined that they failed to meet that burden.
Indemnity Issues in Labor Law (SEP)
The forgotten party in all of this litigation is Pro Carpet who, for some reason, was able to dismiss plaintiff’s Labor Law claims against it and was dismissed from the lawsuit. As such, the other defendants argued that Pro Carpet’s claims for contractual indemnification were rendered moot after plaintiff’s claims were dismissed. However, the Court noted that the contractual indemnity clause at issue clearly provided that Pro Carpet was entitled to recover “all costs of d defending” the instant claim. On this language, the Court ruled that indemnification, just for defense fees, was contemplated by the plain words of the contract.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
12 NYCRR § 23-1.7(d) – Protection from general hazards – Slipping hazards. |
§ 23-1.7(d) provides that “employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition”, and is sufficiently specific. |
Bannister v LPCiminelli, Inc., 93 AD3d 1294, 940 NYS2d 749 (4th Dept, 2012);
|
Bannister held reg inapplicable to open courtyard where π slipped on ice b/c area not walkway, passageway or path under reg. |
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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
[email protected] [email protected]
Dan D. Kohane Cassandra A. Kazukenus
[email protected] [email protected]
Michael F. Perley Jennifer A. Ehman
[email protected] [email protected]
V. Christopher Potenza Marc A. Schulz
[email protected] [email protected]
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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