Labor Law Pointers - Volume IV, No. 3

From the Editor:

Do you have a situation, we just love situations, and they make us giddy!

It was a great month for our friends at Liberty.  It is not every month that there are two cases where Summary Judgment is awarded to the defense, but this month Liberty house counsel gets to put two hash marks in the win column.

On the first one it was a brand new claim, not yet even in suit, when my phone first rang and my friend Mike from Liberty called to tell me he had a situation.  He knew that we love situations.  In addition the case was being handled by an experienced house counsel attorney I know and have had cases with down in the NYC area.  Frank, the attorney, and I were both firing emails back and forth with claims developing and re-developing theories in the earliest stages of the case.  The plaintiff, the insured’s employee, had driven a water truck onto a demolition site and the slab had collapsed under him allowing the truck to fall to the basement below and causing severe injuries.  There were two potential theories of defense here, first, a sole proximate cause defense, that the plaintiff was told not to drive the truck onto the slab to spray water and was given the appropriate tools to do so without going on the slap, a water cannon of sorts.  The second theory was that there are simply no safety devices that would protect the driver of a truck when the ground falls out from beneath him.  In the end the Second Department did not like the first theory but the logic of the second, that there are simply no safety devices which could protect the driver in this situation and thus it is not the type of risk the statute was designed to protect against, carried the day.  A quality win for Frank and the claims professionals on a tough case. 

My take on this, talk to as many knowledgeable people as you can; and do it as soon and as often as you can.  We were talking about this within our team, claims was round tabling it and Liberty house counsel was talking about it, all before the ink was dry on the complaint.  I am a huge believer that if two heads are better than one, then ten heads might actually come up with a winning plan, as they did here. 

The second case from  Liberty’s Albany house counsel office has the plaintiff failing to open an A frame ladder and having the bottom slip out from under him after he was instructed to only use that type of ladder when it was open.  They retained a quality expert and carried the day, securing a second Summary Judgment victory upheld on appeal in the same month, nice job.

            Hope everyone is off to a great start on 2015, we are looking forward to it here.  We are polishing off our next webinar, taking you through the 20 most recent labor law cases from the Court of Appeals, and will have a date for you in next month’s edition.  We also have the ability and the desire to provide training to any group interested, either in person or via a webinar, tailored to your needs.  Everything from the basics of a labor law case, to risk transfer on labor law cases, to how to investigate a construction accident and everything in between.  If you want or need training just let us know, if we don’t already have a program suited to your needs, we can develop one. 

            Thanks for your interest, please feel free to contact us at any time with any questions or comments.

 

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.

Galarza v City of New York
December 3, 2014
Appellate Division, Second Department

This Labor Law action was based, in part, upon conflicting testimony between Galarza and his coworker as to whether the plaintiff was involved in an incident in which he fell from the ceiling to the floor.  At the close of evidence, Galarza filed a motion under CPLR 4401 for judgment as a matter of law on the issue of liability on his alleged violation of Labor Law § 240(1) against defendant City of New York.  The trial court denied Galarza’s motion, and the jury returned a verdict in favor of the City dismissing the alleged violations of Labor Law §§ 200 and 241(6).     

Labor Law § 240(1) (DRA)

The Second Department affirmed the denial of Galarza’s motion because the conflicting evidence raised a credibility issue for determination by the jury.  Further, the trial court properly submitted to the jury the first interrogatory asking whether there was an incident that caused Galarza to fall to the floor, as that was his theory of liability at trial.

PRACTICE POINT:  In a case of conflicting testimony regarding whether an accident even happened in a manner which would provide the protections of the Labor Law it is always a question for the jury to determine the credibility of the witnesses.  The burden at trial always rests with the plaintiff and in the motion to overturn verdict the burden is with the moving party who is seeking to overturn the verdict.  Here the central issue for the jury was whether or not there was an accident which caused the plaintiff to fall and once the jury determined that there was not there was any theory upon which the defendants could be held liable the trial was over with a no cause for the defense.

 

Garcia v Market Assoc.
December 3, 2014
Appellate Division, Second Department
                                        
Defendant/third-party plaintiff Rockstone Development was the construction manager of a site owned by defendant/third-party plaintiff Market Associates and leased to defendant Lowe’s for a shopping center.  Market Associates hired third-party defendant Augusiewicz Contracting, Garcia’s employer, to perform demolition work. 

Garcia was assigned to spray the site with water to control dust during the work, and allegedly was injured when he drove the water truck filled with 5,000 gallons water, over a concrete slab.  The slab was concrete flooring of the existing structure, gave way under the truck, and the front end of the truck fell through to the basement level. 

The trial court granted Market Associates, Rockstone and Lowe’s motions to dismiss the complaint, granted Augusiewicz’s motion to dismiss the Labor Law §§ 240(1) and 241(6), and denied Garcia’s cross-motion for summary judgment on his § 240(1) claim, finding plaintiff’s conduct was the sole proximate cause of his injuries.

Labor Law § 240(1) (DRA)

The Second Department held that Market Associates, Rockstone and Augusiewicz (collectively the “construction defendants”) established entitlement to judgment as a matter of law dismissing the § 240(1) claim.  Although the construction defendants failed to establish prima facie that Garcia’s conduct was the sole proximate cause of his injuries, they established that Garcia was not exposed to any risk that safety devices of the kind enumerated in the statute would have protected against.  Further, Garcia failed to demonstrate that he was exposed to a risk contemplated under the statute.

PRACTICE POINT:  Always look at what safety device would have prevented the injury, in fact it is a good idea to make that a question on your interrogatories or verified bill of particulars, ask the plaintiff to identify what safety device would have prevented the injury.  Here there simply were not any that would have or could have prevented the injury of the type anticipated by the statute and thus the risk is simply not of the type anticipated by the statute abd labor law does not apply.

Labor Law § 241(6) (JAE)

The cause of action alleging a violation of Labor Law § 241(6) was likewise dismissed. The construction defendants each demonstrated, prima facie, that the provisions of 12 NYCRR 23-3.3(b)(3), 23-3.3(c), 23-3.4(b), and 23-3.4(c), relied on by plaintiffs, were inapplicable, as the hazard arose from the injured plaintiff's actual performance of the demolition work itself, rather than from structural instability caused by the progress of the demolition. 

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

The Second Department however ruled that Market Associates and Rockstone failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence claims.  When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards.

With respect to premises liability, plaintiffs alleged the concrete slab was not sufficiently demarcated from the surrounding areas and therefore, constituted a trap. With respect to means and methods liability, plaintiffs alleged that Market Associates and Rockstone, among others, supervised, controlled, and directed the work performed.  On their motion, Market Associates and Rockstone addressed the means and methods allegation by contending they only had general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product, which is insufficient to impose liability for common-law negligence and under § 200.  However, the court held they failed to address whether they either created the alleged dangerous condition or had actual or constructive notice of it, and thus, these defendants failed to establish their prima facie entitlement to judgment as a matter of law.

Costa v Sterling Equip., Inc.
December 3, 2014
Appellate Division, Second Department
                                        
Costa allegedly was injured working as an oiler on a crane barge while walking on steel beam.  As he went to step down from the beam onto a “stack of wood” that was about three-to-four feet high, the wood “gave way” and he lost his footing and fell.  Costa died and his son was substituted as plaintiff.  The trial court denied defendant’s motion to dismiss the Labor Law § 200 and common-law negligence claims.

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

The Second Department upheld the denial of defendant’s motion.  Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where work was being undertaken, an owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 bears the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of its existence.  Here, defendant failed to establish that it did not create the allegedly dangerous condition nor had actual or constructive notice of its existence.

Costa v State of New York
December 3, 2014
Appellate Division, Second Department
                                        
In this action, Costa sued the State of New York.  The trial court denied the State’s motion to dismiss the Labor Law § 241(6) claim based on alleged violations of Industrial Code §§ 23-1.7(e)(1) and 2.1(a)(1), but granted the motion to extent it sought dismissal based on a violation of 1.7(e)(2).

Labor Law § 241(6) (JAE)
The claimant’s decedent allegedly was injured while working as an oiler on a crane barge situated near the Wantagh Bridge. The claimant alleged that the decedent was walking on a steel beam and, as he went to step down from the beam onto a “stack of wood” that was about three-to-four feet high, the wood “gave way,” he “lost [his] footing,” and he fell. 
The Second Department found that the trial court properly granted that branch of the State’s motion which was for summary judgment dismissing cause of action based on a violation of 23-1.7(e)(2), and should have granted that branch of the State’s motion which was for summary judgment dismissing that cause of action insofar as it was based on 23-1.7(e)(1).  The State established, prima facie, that these regulations were inapplicable because the decedent did not trip, and the pile of wood that was between three-to-four feet high could not be considered a tripping hazard.
However, the Second Department agreed with the trial court’s denial of that branch of the State’s motion relating to § 23-2.1(a)(1).  The State failed to establish prima facie that the accident did not occur on a passageway.  Further, there was no showing that the pile of wood was properly stored.
Nalepa v South Hill Bus. Campus, LLC
December 4, 2014
Appellate Division, Third Department

Nalepa was a pipe fitter whose employer was hired to install pipes in a bathroom in a building owned by defendant.  Nalepa was working in the bathroom on the ground level of the building while his coworker was in the ceiling locating water lines.  The coworker asked for Nalepa’s help and he ascended a 10-foot ladder he found leaning against the bathroom wall.  After he climbed half-way up the ladder, the bottom of the ladder slipped away from the wall, and he fell.  

He filed this Labor Law §§ 240(1), 241(6), 200 and common-law negligence action against defendant South Hill, and moved for partial summary judgment on the §§ 240(1) and 241(6) claims.  South Hill cross-moved to dismiss the complaint, arguing Nalepa’s own negligence was the sole proximate cause of his injuries.  At his deposition, Nalepa testified that there was no reason he could not have opened the A-frame ladder, and his awareness that using the subject ladder in the manner in which he did was contrary to his safety training.  The trial court granted the cross-motion to dismiss the complaint, and denied Nalepa’s motion.

Labor Law § 240(1) (DRA)

The Third Department affirmed dismissal of this claim as South Hill met its burden of establishing as a matter of law that Nalepa’s negligence was the sole proximate cause by submitting Nalepa’s deposition testimony and the expert report of an engineer.  The engineer avvered that the ladder appeared to be in good working order, was in a safe, useable condition and was an adequate safety device for the elevation-related work Nalepa was performing. 

The expert explained that the A-frame ladder is not designed to be used while it is in a closed position and leaning against a wall, and opined that, although the ladder did not have rubber feet and there may have been dust or debris on the floor, the incident would not have occurred if the ladder had been used properly in an opened and locked position.  Thus, the expert concluded that the sole cause of the incident was Nalepa’s misuse of the ladder.  

In response, Nalepa’s expert opined that the ladder was defective because it lacked non-skid feet and was “in a generally poor structural condition.”  However, the court held this evidence failed to rebut South Hill’s showing that Nalepa’s employer’s improper use of the ladder was the sole proximate cause of his incident because Nalepa’s expert stated he was “uncertain” whether the incident would have been prevented if the ladder had been opened before Nalepa used it.

The court further rejected Nalepa’s argument that South Hill  is at least partially at fault for having provided the ladder for Nalepa’s use by improperly placing it where Nalepa found it because there was no proof that South Hill deliberately placed it ladder in that location, leaning against the wall, for his use in that position.

PRACTICE POINT:  How logical is this.  A ladder is provided, it is adequate when opened but the plaintiff decides to use it while leaned against the wall.  The three prongs of the sole proximate cause defense again are 1) an adequate safety device which is 2) available and which 3) the plaintiff has been instructed to use, or knows he is expected to use, which the plaintiff either does not use or misuses.  What could be more on point or logical than these facts, just open the ladder and it is safe.  The importance of a good expert is again brought home here to defeat the argument that the ladder was not in safe condition as the feet were worn.  Again logic ruled but without a good expert to opine that the condition of the feet did not matter had the ladder been opened as the plaintiff had been instructed and the defense motion carried the day. 

Ocampo v Bovis Lend Lease LMB, Inc.
December 4, 2014
Appellate Division, First Department

Ocampo allegedly slipped and fell on ice covering most of the floor of the subject building, while carrying pipes for demolition work on an asbestos abatement project.  The trial court denied Bovis Lend Lease’s motion to dismiss the Labor Law §§ 200 and 241(6) claims based on 23-1.7(d) and (e). 
                             
Labor Law § 241(6) (JAE)
The First Department held that the trial court properly declined to dismiss Ocampo’s Labor Law § 241(6) claim based on an alleged violation of 23-1.7(d), since the evidence indicated that Ocampo slipped and fell while he was working on ice on the floor, which had not been removed, sanded, or covered.  Contrary to defendant’s argument, the ice was not integral to the work, notwithstanding the testimony that the work required the use of a solution of water and a chemical intended to reduce its freezing point.
There was no dispute that dismissal of that part of the Labor Law § 241(6) claim as predicated on an alleged violation of 23-1.7(e) was warranted, since the provision was inapplicable.
Labor Law § 200 and Common-Law Negligence (VCP)

The First Department unanimously reversed and dismissed the Labor Law § 200 and common-law negligence claims because the record showed that defendant did not exercise supervisory control over the means and methods of the work, which required plaintiff's employer to use water to minimize the risks associated with asbestos.  While a slip on ice case is typically determined using a premises liability analysis, in this case the evidence indicated that the ice resulted solely from the asbestos abatement work, inasmuch as the building was sealed off from the elements, and no companies other than plaintiff's employer and defendant were permitted to be present on the contamination site.
New York City Health & Hosps. Corp. v Construction Force Servs., Inc.
December 9, 2014
Appellate Division, First Department

An employee of third-party plaintiff HHC testified that third-party defendants CFS would “provide insurance for the employees working on our sites.”  However, a representative of CFS testified there was no agreement to procure insurance for HHC and/or the City.  The trial court granted third-party defendants’ summary judgment motion dismissing the third-party complaint for breach of contract for failure to procure insurance.

Indemnity Issues in Labor Law (SEP)

The First Department held that CFS established their prima facie entitlement to summary judgment, but that HHC raised an issue of fact as to the existence of an oral agreement to procure insurance for HHC based on the testimony of CFS’ insurance broker that it issued an certificate of insurance (COI) listing HHC as an additional insured and the COI stated that HHC was an additional insured under the third-party defendants’ general liability insurance policy  

As the parties provided conflicting testimony regarding the meaning of the “insurance term” in the labor proposals, the court also noted that the “the question of contractual intent is largely one of fact” and disputes over the terms of an oral contract often turn on issues of credulity, generally precluding summary judgment.

Fabiano v State of New York
December 11, 2014
Appellate Division, Third Department

Fabiano was employed by a contractor hired to paint defendant’s bridges and allegedly was injured when he stepped on a scaffold plank that collapsed.  The trial court granted Fabiano’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendant’s cross-motion to dismiss the complaint. 

Labor Law § 240(1) (DRA)

The Third Department affirmed as defendant conceded that Fabiano demonstrated a prima facie showing of entitlement to judgment upon the collapse of the scaffold and argued that Fabiano was recalcitrant in failing to use an available safety harness.  However, the court held it was undisputed that Fabiano stepped onto a plank on the existing scaffold, which was the primary safety device erected for the work and the plank collapsed.  Thus, the decision not to wear an available safety harness, or employ other safety measures that might have been available, could not have been the sole proximate cause of the incident.  As a result, Fabiano was therefore correctly awarded partial summary judgment on this claim.

PRACTICE POINT:  The failure of a safety device intended to protect the plaintiff from the injury sustained eliminates the potential for any other failure to be the sole proximate cause of the injury.  That is the definition of the word “sole”, the only, and thus if there is any other cause it cannot be the sole proximate cause.  A difficult pill to swallow but something which must be addressed at the outset of the case or unreasonable expectations can set in.  Recall that this is the case only if the device which failed was in fact a safety device intended to prevent the type of accident which led to the plaintiff’s injury and only applies in the labor law 240(1) or 241(6) claims as the 200 claim is actually a repackaged negligence claim.

Labor Law § 241(6) (JAE)

Similarly, because Fabiano’s actions could not constitute the sole proximate cause of his accident, the Court of Claims did not err in denying defendant’s motion for summary judgment with respect to the Labor Law § 241 (6) cause of action.

Perez v Folio House, Inc.
December 11, 2014
Appellate Division, First Department

Perez testified he lost his balance and slipped and fell from an elevated platform within a larger scaffolding structure to a lower level below.  However, his coworker testified that when he observed Perez immediately before and after the accident, he was on the same level of the scaffold.  Perez’s foreman testified that he inspected the area immediately after the accident and did not find any gaps in the planking or any openings large enough for a person to fit through. 

The trial court denied defendants’ motion for summary judgment to dismiss the Labor Law §§ 240(1) and 241(6) claims, and granted Perez’s motion on his § 240(1) claim.   

Labor Law § 240(1) (DRA)

The First Department held that based on the testimony, triable issues of fact exist as to how Perez’s incident occurred and whether it resulted from a violation of the statute as the coworker testified there was not another level beneath the area where Perez was working, other than the sidewalk bridge three stories below. 

The court further noted the testimony showed that right after the incident Perez told his coworker and foreman that he hit or banged his knee on a metal clamp while stepping over a pipe bracing.  The court observed that this testimony was consistent with the testimony by the doctor and physician’s assistant who first treated Perez that his only complaints at that time pertained to the cut on his knee and he did not report that he had fallen from a height.  Thus, the court held Perez may have tripped or slipped and fallen while walking across the non-defective, level platform of the scaffold. 

However, defendants failed to establish that Perez was the sole proximate cause of his injuries.

PRACTICE POINT:  Always investigate as quickly as possible to obtain any and all statement of the plaintiff to co-workers, health care providers including first responders, on accident reports and to any other witnesses.  A statement by the plaintiff prior to his or her decision to make a claim which does not reference a fall may well be the key to getting the case at least to a jury if not to obtaining a no cause.

Labor Law § 241(6) (JAE)
With regard to the Labor Law § 241(6) claim predicated on a violation of § 23-1.7(b), the First Department held that it must be dismissed because, even accepting Perez’s account of his accident, he did not fall through a “hazardous opening” in the platform on which he was working.  As to the remaining Industrial Code regulations on which Perez predicates his claim, since he failed to address them, he has abandoned them as bases for liability.
Brown v New York-Presbyterian HealthcCare Sys., Inc.
December 23, 2014
Appellate Division, First Department

Brown allegedly was working on a flatbed trailer when he stepped into a hole on the flatbed, sinking his left leg into the hole up to his hip and sustaining injury.  The trial court denied defendants’ motion for summary judgment dismissing the complaint.

Labor Law § 240(1) (DRA)

The First Department reversed on this claim as Brown was working on a flatbed trailer at the time of the incident and thus was not exposed to any gravity-related risk arising from his work as there was no indication in the record as to the manner of safety device that should have been provided to Brown to prevent his incident.  

PRACTICE POINT:  This case refreshes our memory on the fact that a flatbed trailer is not the type of elevated worksite for which the statute was designed and there are no safety devices which can protect the plaintiff from the type of accident which caused his injury.

 

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

Defendants demonstrated their prima facie entitlement to summary judgment dismissing plaintiffs' Labor Law § 200 claims.  The uncontroverted evidence shows that defendants neither supervised or controlled plaintiffs' work, and that they had no actual or constructive notice of the hole in the flatbed trailer which caused the accident.

Labor Law § 241(6) (JAE)

While Brown proffered in his pleadings and bills of particulars at least a dozen specific Industrial Code violations in support of the Labor Law § 241(6) claim, only two were contested on appeal.  Thus, the rest were deemed abandoned and dismissed.
Brown alleged a violation of § 23-1.7(b)(1)(i), which pertains to hazardous openings.  This regulation has been construed to apply to openings that persons can fall through in their entirety. Since the hole did not meet this definition, defendants should have been granted summary judgment dismissing Brown’s § 241(6) claim insofar as it was predicated on § 23-1.7(b)(1)(i).
Regulation § 23-9.2(a) pertains to “power-operated equipment.”  However, the flatbed trailer at issue here is not a piece of power operated equipment, and the court held its attachment to a truck does not transform it into such. 
Lopez v New York City Dept. of Envtl. Protection
December 24, 2014
Appellate Division, Second Department

Lopez was working on the construction of an electrical building when he fell backward and became impaled on an uncapped piece of a vertical rebar.  The facility was owned by the City of New York and managed by the NYC Dept of Environmental Protection.  The trial court granted Lopez’s cross-motion for summary judgment on his claim for an alleged violation of Labor Law § 241(6) based on Industrial Code § 23-1.7(e)(2), and denied defendants’ motion to dismiss.  At trial, a jury then awarded Lopez $2,000,000 for past pain and suffering and $3,000,000 for future pain and suffering along with other amounts.

Defendants moved for a new trial on the issue of damages for future pain and suffering.  The court granted the motion unless Lopez stipulated to reduce the award from $3,000,000 to $1,500,000.   This appeal followed.

In considering defendants’ arguments, the court modified the trial court’s order.  It declined to up hold the reduction of future pain and suffering or grant a new trial on damages.  It found that considering Lopez’s injuries and the expert testimony that Lopez’s body would continue to deteriorate and that Lopez would need additional surgeries and require ongoing treatment for the rest of his life, the award did not warrant being set a side or reduced.      

Labor Law § 241(6) (JAE)

With regard to Lopez’s Labor Law § 241(6) claim, § 23-1.7(e)(2) provides that “floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed” (12 NYCRR 23-1.7[e][2]).  The court found this provision sufficiently specific to support a cause of action to recover damages pursuant to Labor Law § 241(6). 
Here, Lopez established his prima facie entitlement to judgment as a matter of law by showing that there was a violation of 23-1.7(e)(2) and that such violation was a proximate cause of his injuries.  In opposition, defendants failed to raise a triable issue of fact as to their allegation that the uncapped rebar was an integral part of the work that was not subject to the cited regulation or as to whether the plaintiff's own negligence contributed to the accident.  Accordingly, the Supreme Court properly granted that branch of the plaintiff’s cross motion, and, in effect, properly denied that branch of the defendants’ motion which was for summary judgment dismissing that cause of action.
Sirignano v Jencik
December 24, 2014
Appellate Division, Second Department

Defendants owned a single-family residence and hired Sirignano’s decedent and his brother to cut down trees on their property.  Decedent had been holding onto a guide line attached to a tree being cut down by his brother, when the tree started to fall, the decendent’s arm became entangled in the guide line and he was thrown head first into another large tree.  The decedent died as a result of his injuries.

Defendants moved for summary judgment to dismiss the complaint on the ground that they did not exercise control over how decedent and his brother performed the work which resulted in the incident.  Sirignano opposed arguing an issue of fact exists as to the extent of the direction and control of the work exercised by defendants, and cross-moved for judgment on the issue of liability, contending decedent’s brother was an employee of the defendants who negligently performed his working, and that defendants were responsible for decedent’s brother’s actions under respondeat superior.  The trial court granted defendants’ motion, and denied Sirignano’s motion.

Labor Law § 240(1) (DRA)

The Second Department noted that “the determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results.  Control over the means is the more important consideration.”  The court further noted that whether a party is an independent contractor or an employee is usually a factual issue for a jury.

PRACTICE POINT:  The defense put forth here was that the defendants were the owners of a single family residence and thus could not be held liable under the labor law absent their exercising control over the means and method of the work being done by the plaintiff.  The plaintiff claimed that his brother was an employee of the owners, that he exercised the necessary control and that his negligent actions are thus attributable to the owners.  The owners argued that the brother was an independent contractor.  That, the employment status of the worker, is a question of fact for the jury and thus a question of fact exists. 

 

Nicoletti v Iracane
2014
Appellate Division, Fourth Department

Nicoletti was hired as a subcontractor to resurface a deck attached to defendant’s home.  Before beginning any actual work, Nicoletti went to the home as assess how he would perform the work.  While walking on the deck, it caved in and he fell, allegedly sustaining injuries.  He filed common-law negligence and Labor Law § 200 claims against defendant, who moved for summary judgment dismissing the complaint.  The trial court granted defendant’s motion.

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

The Fourth Department affirmed the dismissal of the common-law negligence and Labor Law § 200 claims. Here, the defendant demonstrated her prima facie entitlement to judgment as a matter of law by establishing that she did not create the defect and that she did not have actual or constructive notice of the defect in the deck, which was latent and not discoverable upon a reasonable inspection. In opposition, the plaintiff failed to raise a triable issue of fact.

Alcantara v Knight
December 30, 2014
Appellate Division, First Department

The verdict sheet instructed jurors to determine (1) whether defendant was negligent, and (2) if so, whether defendant’s negligence was a substantial factor in causing Alcantara’s injuries.  The jury found defendant negligent but that his negligence was not a substantial factor in causing the injury.  The sheet instructed that if the jurors answered the second question in the negative, they should cease deliberations and report their verdict.  However, the jury continued deliberating and determined plaintiff Alcantara was also negligent; that his negligence was a substantial factor in causing his own injury; that he was 95% at fault, and defendant was 5% at fault; and that Alcantara was entitled to $200K in damages.

The trial court denied Alcantara’s motion to set aside the jury verdict as inconsistent and for a new trial, and granted Knight’s cross-motion to enter a complete defense verdict and reduce the damages award to zero. 

Labor Law § 240(1) (DRA)

The First Department noted this issue is controlled by Pavlou v City of New York, a Labor Law case where plaintiff was injured due to a damaged crane hoist.  In Pavlou, the jurors determined that the City, the owner, was negligent under Labor Law § 241(6) but that its negligence was not a substantial factor in causing the injury.  The jury also found the crane manufacturer not negligent.   The jury verdict sheet instructed that upon making these findings, the jurors were to stop deliberating, but they did not and found third-party defendant plaintiff’s employer negligent for operating a damaged crane.  This court in Pavlou held that plaintiff was not entitled to a new trial against the City.

In the same way here, once the jurors determined that Knight’s negligence was not a substantial factor or proximate cause of Alcantara’s injuries, they should not have attempted to assess Alcantara’s own negligence and to fix damages.  The fact that the jurors did so was a superfluous act.  Interestingly, the court further noted that Alcantara moved to set aside the verdict after the jury was discharged, rather than alerting the court at a time when the jurors could have been questioned about the verdict.

PRACTICE POINT:  As trial attorneys we always try and figure out what a jury might do with a special verdict sheet.  We struggle to create them, contemplate every comma and show them to anyone who happens to walk by our office at that stressful moment, usually about 10:30 at night.  That said, we have all also worked out the dreaded “if your answer to question 4 is yes, proceed to question 5 but if your answer to question 4 is no proceed no further, notify the bailiff and call my family telling them I might actually be home for dinner tonight” portion of the sheet.  Here the jury ignored the instruction to notify the bailiff and plowed blindly on.  The court held that it does not matter, that their answer that the negligence was not a proximate cause of the injury ends the inquiry no matter what they did after that point, and we can all go home. 

 

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

INDUSTRIAL CODE REGULATION

SPECIFIC OR NOT SUFFICIENTLY SPECIFIC

CASE LAW

FACTS

12 NYCRR part 23 – Protection in Construction, Demolition and Excavation Operations.

Specific regulatory standards are not met simply by reference to 12 NYCRR part 23.

Mamo v Rochester Gas & Elec. Corp., 209 AD2d 948, 619 NYS2d 426 (4th Dept 1994).

In Mamo, π’s reference to section containing regulations regarding use of adequate scaffolding, safety belts, life lines, life nets, and aerial baskets in general context of construction and maintenance did not meet requirement of allegation of specific regulatory violation in Labor Law action pertaining to workplace safety.

12 NYCRR § 23-1.2 – Protection in Construction, Demolition and Excavation Operations.

§ 23-1.2, 1.2(c) and (e) are general provisions and thus, not sufficiently specific.

Stairs v State St. Assocs., 206 AD2d 817, 615 NYS2d 478 (3d Dept 1994);
Doyne v Barry, Bette & Led Duke Inc., 246 AD2d 756, 668 NYS2d 58 (3d Dept 1998).

 

12 NYCRR § 23-1.3 – Protection in Construction, Demolition and Excavation Operations.

§ 23-1.3 is a general provisions and thus, not sufficiently specific.

Williams v White Haven Memorial Park, Inc., 227 AD2d 923, 643 NYS2d 787 (4th Dept 1996);
McGrath v Lake Tree Vil. Assocs., 216 AD2d 877, 629 NYS2d 358 (4th Dept 1995). 

 

12 NYCRR § 23-1.4 – Protection in Construction, Demolition and Excavation Operations.

§ 23-1.4(a) and (b)(13) are not sufficiently specific.

Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2d 494, 601 NYS2d 49 (1993); Dombrowski v Schwartz, 217AD2d 914, 629 NYS2d 924 (4th Dept 1995).

 

12 NYCRR § 23-1.5 – Protection in Construction, Demolition and Excavation Operations; General responsibility of employers. 

§ 23-1.5(a), (c)(1), (c)(2) and (c) (3) set forth only general safety standards and are not sufficiently specific.

Pereira v Quogue Field Club of Quogue, 71 AD3d 1104, 898 NYS2d 220 (2d Dept 2010); Wilson v Niagara University, 43 AD3d 1292, 842 NYS2d 819 (4th Dept 2007);
Gasques v State, 15 NY3d 869, 910 NYS2d 415 (2010); Williams v White Haven Memorial Park, Inc.

 

12 NYCRR § 23-1.6 – Protection in Construction, Demolition and Excavation Operations; Responsibility of employees.

§ 23-1.6 constitutes general safety standards.

Balladares v Southgate Owners Corp., supra);

Lawyer v Roterdam Ventures, 204 AD2d 878, 612 NYS2d 682 (3d Dept. 1994])

In Balladares, § 23-1.6 inapplicable where π injured as result of basement floor collapse during demolition of brick wall with jackhammer.

 

In Lawyer, § 23-1.6 inapplicable where π, while erecting sign on front of building, fell from ladder when it slipped and collapsed.

 

 

 

 

 

 

 

 

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Labor Law Pointers

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V. Christopher Potenza

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Jennifer A. Ehman

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Marc A. Schulz

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            David R. Adams, Team Leader                                              Steven E. Peiper
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            Michael F. Perley                                                                   Jennifer A. Ehman
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