Labor Law Pointers - Volume IV, No. 7S

From the Editor: 

Did you miss us, seems like only yesterday I was getting ready to send out Labor Law Pointers and then the Court of Appeals releases a decision.
As is our usual practice we put out a special edition when the Court of Appeals decides a Labor Law case and we got one this morning.  While this case is not policy changing, it does address some important issues.  As I was watching the oral argument it brought home to me that a great many of you likely do not do so and it might just be a good time to provide you with the decision and the argument to let you see just how disjointed the decision is sometimes when compared with the actual argument and the question posed by the bench.  Ok, so it is likely that I am the only labor law junkie who actually watches every argument, but you should try it, you just might like it.

Thanks for your interest.



David R. Adams
Hurwitz & Fine, P.C.

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Barreto v Metropolitan Tr. Auth.
May 7, 2015
Court of Appeals

Plaintiff was an asbestos handler who was injured falling into an open manhole after completing work for the day.  The opening had been surrounded by a three sided containment enclosure which was lined with plastic sheeting to contain the containments from the asbestos removal work.  The enclosure had lights within it to illuminate the area.  The remediation workers, including the plaintiff, had been instructed that they were to replace the manhole cover on the opening prior to dismantling the containment enclosure.  The removal and replacement of the manhole cover require two men due to its weight. 
At the conclusion of their shift plaintiff and his co-workers proceeded to dismantle the enclosure immediately without first replacing the manhole cover.  Plaintiff was not aware the manhole cover had not been replaced and it was sitting outside the enclosure.  Plaintiff contends that the lights in the enclosure had been turned off.  As plaintiff walked to the rear of the enclosure he fell into the open manhole.
Plaintiff commenced an action alleging violations of 240(1), 241(6) and 200.  The trial court dismissed all claims against the plaintiff on the grounds that plaintiff was the sole proximate of the accident.  A divided First Department held that “plaintiff was provided with a “nearby and readily available” safety device, i.e., the manhole cover, and plaintiff’s own actions were the sole proximate cause of his injuries because he disregarded his supervisor’s instruction to replace the manhole cover before dismantling the containment enclosure”.  The first certified the question to the Court of Appeals.
Justice Pigott, writing for the majority, held that the plaintiff was entitled to Summary Judgment on the 240(1) claim.  The court started with the basic language from Cahill and Zimmer that “Where an accident is caused by a violation of the statute, the plaintiff’s own negligence will not furnish a defense”; however, “where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability”. Thus, in order to recover under section 240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury”.
It must be noted that the court did not decide the issue of whether the work plaintiff was engaged in posed an elevation related hazard.  That point was not argued below and the Court of Appeals assumes, “for purposes of this appeal only, that plaintiff was engaged in work that posed an elevation-related risk.”  The court carefully points out that they are not deciding that issue.  Judge Fahey asked the plaintiff’s attorney at length about this point and the fact that street level cases are generally not considered to be a 240(1) case and even said that the bar is looking for direction in this area.  In the end however the issue was not decided by the court, though it was a major portion of their questioning during the argument.

Plaintiff established his prima facie case by the absence of a guard rail system around three sides of the manhole opening while the enclosure was being dismantled through the testimony of the president of the site safety consultant, a defendant in this matter, who testified that such a guard rail system should have been installed prior to disassembly of the enclosure.

The defendant’s sole proximate cause argument was not able to convince the court as they held that the fact that it took two men to move the manhole cover and the fact that the lights had been turned off precluded the plaintiff’s actions from being the sole proximate cause of the accident.  The Court of appeals therefore found for the plaintiff and awarded partial Summary Judgment on the 240(1) claim.  The court also sent the 241(6) back to the trial court as the decision on 241(6) was based on the sole proximate cause defense and no decision was made with regards to the specific section of the regulations asserted.

The court also addressed the issue of who is a “statutory agent” as contemplated by the Labor Law.  The court, in boiling down the standard, held that the safety consultant was an agent of the owner as they had the ability or the authority to control the activity which brought about the injury.

Judges Lippman, Rivera and Fahey concur with Judge Pigott.

Judge Stein dissented in part and would have found for a question of fact on the issue of whether plaintiff was provided proper protection and whether plaintiff was the sole proximate cause of his injuries.  He cites to a question of fact as to whether the light had in fact been turned off as well as if the manhole cover was proper protection or if a guard rail was necessary as well as the sole proximate cause of the plaintiff for disregarding the specific instruction to have the manhole cover replaced prior to dismantling the enclosure.

Judge Read also dissented and would have held that the trial and appellate courts got the case right, and that the case should be dismissed as to all defendants.  He opines that the plaintiff knew that the enclosure was not to be dismantled until after the manhole cover was replaced and that the plaintiff failure to wait, for no good reason, until the cover was replaced was the sole proximate cause of the plaintiff’s accident and resulting injury. 

This case provides a good look at the mindset of the Court of Appeals.  When faced with multiple potential causes of the accident they do not appear open to the argument that had the plaintiff simply done what he was told that the accident would not have happened.  In the instant case there can be no argument but that had the plaintiff waited to dismantle the enclosure until after the manhole cover was replaced, the accident would not have happened at all.  The fact that there are potentially other causes of the accident removes this from the sphere of sole proximate cause cases. Whether this is a fair interpretation of the law or not is irrelevant, it appears that the court is continuing down this path as they did in the Grove case.

I have attached for your enjoyment both the link to the decision and the video of the oral argument.  It is, as usual, astonishing to read the decision and then hear the argument.  There is nuance to the argument which is totally lost in the decision.  I would urge you to read the decision and then watch the argument. I do this for every labor law case heard by the Court of Appeals, it is enlightening to see just how active the bench is during these arguments and how little of the prepared argument the attorney gets to make.

Link to the decision;


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Labor Law Pointers

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
            [email protected]                                                            [email protected]
            V. Christopher Potenza                                                        Marc A. Schulz
            [email protected]                                                            [email protected]


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Phone:  716.849.8900
Fax:   716.855.0874
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