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Labor Law Pointers - Volume IV, No. 9

 

 

From the Editor:

            Do you have a situation, we thrive on situations.

            You will notice that we have changed our format a bit this month, we have always had the cases in chronological order but have now grouped them in department order, chronological within each department.  This will make it easier for those of you practicing or handling cases within a specific department to focus quickly on the cases most important to you.

            I would be remiss if I did not with all a happy Fourth of July, the 239th anniversary of our Declaration of Independence; this is, truly, the All American holiday.  We celebrate with fireworks, food and fun, what a day.  In addition today is Canada Day for our neighbors to the north.

I would again like to remind everyone that we remain available for training on any and all issues labor law related.  We can and do often travel to our claims partners for onsite training and with the advent of remotely located claims professionals we have been providing our training via webinar.  Please feel free to contact us with any of your specific needs.

In addition we are always just a phone call, email of text away to discuss a case you may have or a question on anything even remotely labor law related.  We love the complex questions, I have a big white board on the wall behind my desk and have many times put the call on speaker so I can diagram out the relative parties and the contracts between them, with arrows for contractual indemnity rights, for additional insured obligations and for common law claims.  We really do love this stuff, strange as that may sound.

Enjoy this month’s edition, there are some interesting cases as we slide into the summer slump, and remember that we have no problem with this newsletter being shared around, in fact if anyone would like to be added to the distribution list just send me an email, just click on the hyperlink below and you will be directed to me.

As a reminder, a simple click on any of the case names below will take you directly to the courts official decision, a click on the section of the labor law will take you to the statute and a click on any of our initials will generate an email to the respective team member.

Happy Fourth of July and we will be back next month.

 

 

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.

Sovulj v Procida Realty
June 2, 2015
Appellate Division, First Department

Sovulj was using a grinder to cut a groove in a floor but he thought it was a good idea to place a saw tooth blade in the grinder and remove its safety guard to make the blade fit.  In what should be a surprise to no one, he was subsequently injured when the grinder kicked back on him and cut his hand and wrist.  The trial court granted defendants’ motion to dismiss the complaint alleging violations of Labor Law §§ 200 and 241(6) based on Industrial Code regulation (12 NYCRR) § 23-1.12(c).   

Labor Law § 241(6) (JAE)

With regard to the §241(6) claim, the First Department affirmed and held that Sovulj’s claim predicated on a violation of 12 NYCRR § 23-1.12(c) should be dismissed as that section of the code does not pertain to the power tool he was using.

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

The First Department affirmed the dismissal of Sovulj’s Labor Law § 200 claim as the record demonstrated that defendants did not supervise or control Sovulj's work and the decision to remove the grinder's safety guard was solely Sovulj's own.

Melito v ABS Partners Real Estate, LLC
June 4, 2015
Appellate Division, First Department

The decedent elevator mechanic tragically fell to his death down an unguarded elevator shaftway.  The trial court denied ABS’ motion to dismiss the Labor Law § 240(1) claim and denied ABS’ motion on its third-party claims for common-law and contractual indemnity third-party defendant against Transel.  The trial court also granted Transel’s motion to dismiss the third-party claims against it, but denied Transel’s motion to dismiss the § 240(1) claim. 

Labor Law § 240(1) (DRA)

The First Department held that decedent’s action is covered under the statute and that defendants could not rely on a sole proximate cause position since they failed to provide adequate safety devices in the first place.

PRACTICE POINT:  The failure to provide an available and appropriate safety device is the definition of a labor law case and there is no surprise here.

Indemnity Issues in Labor Law (SEP)

Where the Labor Law § 200/Common Law Negligence Claim was dismissed against ABS, it followed that it was entitled to both common law and contractual indemnification.  Transel’s decision to permit the decedent to work near an unguarded elevator shaft with no fall protection, presumably, created the finding of negligence.

 

Roberts v Lower Manhattan Dev. Corp.
June 4, 2015
Appellate Division, First Department
                                        
Roberts apparently signed a release three weeks after his fall from a scaffold, at which time he and one of third-party defendant’s principals believed Roberts’ injuries were limited to fractured ribs.  Less than three months after this incident, Roberts was diagnosed with herniated discs. 

The trial court denied Roberts’ motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ motion to dismiss the complaint against LMDC, with leave to renew based on medical testimony regarding Roberts’ medical records.  The trial court also denied third-party defendant Regional’s motion to dismiss the third-party complaint.

Labor Law § 240(1) (DRA)

Defendants took the position that the herniations were a consequence of the known injury, and that based on that injury, Roberts could have known of the herniations before signing the release if he had sought to obtain the required test.  The First Department remanded this action back to the trial court because the records before it were inconclusive regarding whether the release executed by Roberts bars this action as against LMDC or should be set aside based on a mutual mistake of fact.

PRACTICE POINT:  A release is voidable if there was mutual mistake in its execution, the issue here is whether the plaintiff could have, or should have, known the extent of his injuries at time he executed the release.  The remand is for the trial court to determine that issue.

 

Serowik v Leardon Boiler Works Inc.
June 9, 2015
Appellate Division, First Department

Plaintiff was employed by GDT and allegedly severed his index finger and part of his middle finger while helping to lower a tank weighing between 400 and 500 pounds down a flight of stairs.  The tank was attached to one end of the rope while plaintiff and four others held the rope near the other end to act as counterweights.  When the tank pushed over the edge of the top step, plaintiff was pulled forward into a pipe which the rope was wrapped, resulting in grave injuries to his hand.

The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, denied defendants/third-party plaintiff’s motion to dismiss the complaint and on their third-party claims against GDT for common-law indemnification and contribution.  The trial court also denied GDT’s motion to dismiss the Labor Law §§ 240(1) and 241(6) claims.

Labor Law § 240(1) (DRA)

The First Department held that plaintiff’s injury was due to the application of gravity to the tank, and the elevation differential was not de minimis given the weight of the tank.  Even if plaintiff had wrapped the rope around his arm, such action was not the sole proximate cause because plaintiff was not provided with adequate safety devices.  Further, the court noted plaintiff’s work was a necessary step in the installation of the tank in the building, which is a protected activity.

The court also rejected defendants/third-party plaintiffs’ argument that defendant Leardon was not a general contractor under the Labor Law because Leardon contracted with the owner, defendant 125 East 84th Street Corp. to install a new boiler system at the premises.

PRACTICE POINT:  This case is so close to the Runner case that the result should surprise no one.  The most important part to take from this case is that the plaintiff cannot be the sole proximate cause if the injury where, as here, an adequate safety devise was not provided even if his actions, here in wrapping the rope around his arm, caused the injury.  The existence of a violation of the statute, the failure to provide the appropriate safety device, means that is actions could not be the sole proximate cause of the accident and injury.

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

As defendants/third-party plaintiffs did not supervise or control plaintiff’s work, the First Department dismissed plaintiff’s common-law negligence and Labor Law § 200 claims.

Indemnity Issues in Labor Law (SEP)

For the same reasons, the First Department also granted defendants/third-party plaintiffs’ motion for common-law indemnification against GDT.

 

Smith v Girls Club of N.Y.
June 9, 2015
Appellate Division, First Department
                                        
Smith was injured while participating in a voluntary community service program in lieu of incarceration.  The trial court denied Smith’s motion for partial summary judgment on his Law § 240(1) claim, and adhered to that determination upon renewal.       

Labor Law § 240(1) (DRA)

The First Department held that the trial court properly denied Smith’s motion because he failed to establish that he was an “employee” entitled to the statutory protections.  The court noted that the evidence did not support Smith’s claim that he was employed as an agent of defendant.

PRACTICE POINT:  The statute is clear, the plaintiff must be “so employed” and thus a volunteer can never be an appropriate plaintiff in a labor law case.

 

Nelson v E&M 2710 Clarendon LLC
June 23, 2015
Appellate Division, First Department
                                        
Defendant Ferhait was hired by the owner, E&M, to perform clean-up services following a fire in a mixed-use building.  Nelson was employed by the company hired to fix the building’s roof, and was asked by a salvager and his helper to help move a refrigerator down a flight of stairs.  The salvager and his helper thereafter argued over who would carry the refrigerator, and when the helper let go, the refrigerator slid down the stairs and Nelson fell with it, injuring his ankle.

The trial court granted defendants’ motions for summary judgment dismissing Nelson’s complaint, and denied Nelson’s cross-motion to amend the complaint alleging a violation of Labor Law § 240(1).
 
Labor Law § 240(1) (DRA)

The First Department held that Ferhait and E&M established prima facie entitlement to summary judgment.  Specifically, Ferhait proved that there is no basis to hold it responsible for the actions of the salvager and/or his helper because the contention that the salvager/helper were independent contractors or otherwise working for Ferhait is not supported by the record.  As such, Ferhait owed no duty to Nelson.  Even if the salvager/helper were hired by E&M, the general rule is that “a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work.” 

The court further rejected Nelson’s argument that Multiple Dwelling Law § 78 establishes a non-delegable duty to maintain the premises in a reasonably safe condition because the incident occurred as a result of the means and methods of the work, not due to a condition on the property.  The court also rejected Nelson’s position that issues of fact exist as to whether E&M was negligent in selecting the salvager as there is no proof that E&M knew or should have known of any propensity on the part of the salvager or his helper to engage in conduct that allegedly caused the incident.

Finally, the court upheld the denial of Nelson’s cross-motion because § 240(1) does not apply here as Nelson was a volunteer, not an “employee” when he was injured and the court noted that no one directed him to move the refrigerator; rather, he agreed to help move it on his own.

PRACTICE POINT:  Another volunteer here.  The plaintiff, had he been working on the roof and fallen down the steps would have been an appropriate plaintiff; however that was not how he was injured.  The fact that he was voluntarily assisting another worker in a task that was no part of his work duties makes him a volunteer, not so employed, and not an appropriate labor law plaintiff.

 

Medina v 42nd & 10th Assoc., LLC
June 25, 2015
Appellate Division, First Department

Medina “had to” place the scaffold over the sidewalk bridge to enable him to reach windows to perform his caulking work.  He was leaning at an extreme angle against the sidewalk bridge when the scaffold collapsed and Medina fell.  The trial court denied Medina’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ motion to dismiss the common-law negligence claims as well as violations of §§ 240(1), 241(6) and 200.

Labor Law § 240(1) (DRA)

The First Department held that defendants failed to submit sufficient evidence that Medina was a recalcitrant worker or that his own actions were the sole proximate cause in that they failed to raise an inference that there were scaffolds adequate for Medina’s task on site and that he chose not to use them after being directed to do so.  The court further noted that defendants also failed to show Medina was able to connect his safety harness before reaching the top of the sidewalk bridge or that even if he had done so, it would have prevented his fall.

PRACTICE POINT:  An essential element to the Recalcitrant Worker defense where the claim is that the plaintiff failed to use a safety devise is that the safety devise must have been supplied and have been available to the plaintiff to use.  As to the sole proximate cause defense it is essential that the plaintiff have been instructed to use the available and appropriate safety device.  Here the court also held that there was no evidence that the safety harness would have prevented the injury to the plaintiff underscoring the need for an expert to defend most labor law cases.

Labor Law § 241(6) (JAE)

The First Department then held, with regard to Medina’s Labor Law § 241(6) claim, that Industrial Code § 23-5.1(c)(1) was insufficiently specific to support a Labor Law § 241(6) claim.  As to 12 NYCRR 23-5.1(h) and 23-5.8(c)(1), issues of fact existed as to whether a “designated person” was supervising.

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

The First Department reversed with respect to the Labor Law § 200 and common-law negligence and dismissed those claims since there was no evidence that defendants controlled the means or methods of Medina's work.

  Doto v Astoria Energy II, LLC
June 3, 2015
Appellate Division, Second Department

Doto’s employer, third-party defendant Newtron, was hired to install electric heat tracing.  Doto allegedly was injured when he fell while climbing over a railing of a permanent platform 3-4 stories above ground at a power plant owned by defendant Astoria.  Doto claimed the only way he knew to perform his work required him to climb up a scaffolding ladder near the platform, step onto a scaffolding gate that provided access to a narrow board next to the platform but not the platform itself, and then climb from the gate onto and over the 3½ foot railing of the permanent platform.

Doto filed this common-law negligence and Labor Law §§ 200, 240(1) and 241(6) action against Astoria, the GC and SNC, the scaffolding company hired by Astoria, as well as Peterson.  The trial court denied Doto’s motion for partial summary judgment on his § 240(1) claim, granted defendants’ motion to dismiss the common-law negligence and §§ 200, 240(1) and 241(6) claims.  

Labor Law § 240(1) (DRA)

The Second Department held that § 240(1) applies to the facts of this case even though Doto only fell from the railing to the platform because he demonstrated that defendants failed to provide him with an adequate safety device, and that such failure was a proximate cause of his injuries.  The court rejected defendants’ sole proximate cause argument because there is no evidence that anyone instructed Doto that he was “expected to” use the permanent ladder rather than the scaffolding.  The court thus reversed the trial court’s decision, and granted Doto summary judgment on this claim.

PRACTICE POINT:  This case has been the source of several calls as the plaintiff only fell from the 3’ railing to the platform floor and there is no safety device which would prevent that small of a fall.  That is not the issue here.  The issue in this case is not the lack of a safety device to prevent that fall, but rather the fact that the plaintiff was not instructed to use a different and appropriate safety devise, namely the permanently fastened ladder, and that failure to instruct precludes the sole proximate cause defense.  Recall that a sole proximate cause defense requires that there be an available, appropriate safety device which the plaintiff was instructed to use or knew he was to use which, for no good reason, the plaintiff failed to use or misused.

 

Labor Law § 241(6) (JAE)
The Second Department held that the motion court improperly granted that branch of the defendants’ cross motion which dismissed so much of the § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(f).  While a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code, the failure to identify the code provision in the complaint or bill of particulars is not fatal to such a cause of action.  Although plaintiff did not allege a violation of 12 NYCRR 23-1.7(f) prior to motion practice, the failure to do so did not involve new factual allegations, new theories of liability or cause prejudice to the defendants.  Moreover, 12 NYCRR 23-1.7(f) sets forth a specific, rather than general, safety standard.
With regard to the applicability of the provision, the Second Department held that defendants did not establish, prima facie, either that 12 NYCRR 23-1.7(f) was inapplicable to the facts of this case, or that the alleged violation of the provision was not a proximate cause of the plaintiff’s injuries.  Accordingly, that branch of the defendants’ cross motion should not have been granted.
However, the motion court properly granted that branch of the defendants’ cross motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon alleged violations of 12 NYCRR 23-1.7(e)(1) and 12 NYCRR 23-5.1(f) and (h).
Labor Law § 200 and Common-Law Negligence (VCP)

The Second Department reversed, holding that the Supreme Court also should have denied that branch of the defendants' cross motion for summary judgment on the common-law negligence and Labor Law § 200 claims. Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where the work was being undertaken, an owner must make a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it.  A contractor may be liable only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it.  The Court found that the defendants failed to establish their prima facie entitlement to judgment as a matter of law.

 

Casasola v State of New York
June 10, 2015
Appellate Division, Second Department

Casasola was working as a carpenter on an allegedly unsecured A-frame ladder when it swayed and he fell at a construction project owned by the State of New York.  The Court of Claims denied Casasola’s motion for partial summary judgment on his Labor Law § 240(1) claim.

Labor Law § 240(1) (DRA)

The Second Department held that Casasola submitted evidence that, while in the course of his employment, as a carpenter on property owned by the State, he was standing on an unsecured ladder when the ladder tripped over, causing him to fall.  In opposition, the State relied only upon inadmissible hearsay in support of its sole proximate cause argument.  Accordingly, the Second Department reversed the Court of Claims decision, and awarded summary judgment in favor of Casasola.

PRACTICE POINT:   When a ladder tips and the plaintiff falls there is little a defendant can argue.  The fact that the basis of the defendant’s argument was based on hearsay is problematic, but sometimes that s all you have to rely upon as a defendant in a labor law case.  Great care must be taken to ensure that the evidence is in admissible form. 

 

Piatek v Oak Dr Enters., Inc.
June 10, 2015
Appellate Division, Second Department

In this wrongful death action, the trial court granted the motion of defendant St. Andrews for summary judgment dismissing the complaint, and granted the motion of third-party defendant Vojtek Construction dismissing St. Andrews’ third-party complaint.

Labor Law § 240(1) (DRA)

The Second Department held that St. Andrews and Vojtek Construction prima facie established that for the purposes of the Labor Law, St. Andrews was not an owner of the property at which the incident allegedly occurred.

PRACTICE POINT: 

Patrikis v Arniotis
June 17, 2015
Appellate Division, Second Department

Plaintiff allegedly was injured when he fell from an extension ladder owned by defendants that slipped while he was climbing down from the roof of defendants’ home.  Plaintiff returned to the home two weeks after the incident and inspected the ladder, observing for the first time that the rubber feet on the ladder were “totally eaten up, worn,” and “destroyed.”  The trial court granted defendants’ motion for summary judgment dismissing the common-law negligence and violation of Labor Law § 200 claims. 

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

The Second Department reversed and ruled that the trial court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the common-law negligence cause of action. Although defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident, plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with testimony that the ladder had not been used between the time of the accident and the plaintiff's inspection, raised a triable issue of fact.

Further, contrary to the defendants' contention, they failed to make a prima facie showing that plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff's inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence.  Evidence that the ladder's rubber feet were worn down is sufficient to permit the inference that this defective condition caused the slippage.

 

Torres v St. Francis Coll.
June 24, 2015
Appellate Division, Second Department

Torres was cleaning a basketball backboard when he fell from an A-frame ladder.  His incident occurred in a gym owned by defendant.  At the time of the incident, Torres was employed as a janitor by nonparty ISS who provided cleaning and janitorial services under a service contract.  The trial court granted defendant’s motion for summary judgment dismissing the complaint.

Labor Law § 240(1) (DRA)

The Second Department held that defendant established Torres’ work did not constitute “cleaning” within the statute.  Defendant established that Torres was performing routine maintenance of the basketball backboards, done regularly throughout the course of the basketball season that did not require any specialized equipment, and was unrelated to any ongoing construction or renovation of the School.  Accordingly, Torres’ work was not a covered activity.

PRACTICE POINT:  Following along in the footsteps of Dahar (cleaning as a part of the manufacturing process) and Soto (cleaning in a retail store) this case continues to hold the applicability of the statute to its original intent and purpose, to protect workers engaged in construction type activities, commercial window washing or other similar activities which expose the worker to an elevation related risk.

 

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

The Second department affirmed, holding that the trial court properly granted those branches of the defendant's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims.  To the extent that Torres alleges the accident was caused by a defect in the ladder, which was owned and provided by the defendant, a premises condition is at issue. However, the defendant established, prima facie, that the ladder was not in a defective condition and that, in any event, it did not create or have actual or constructive notice of any defect in the ladder.  To the extent that Torres alleges the accident was caused by the manner in which the work was performed, the defendant established, prima facie, that it did not have the authority to supervise or control the means and methods of the injured Torres’ work.  The defendant established that only Torres’ employer, ISS, had that authority.

 

Christiansen v Bonacio Constr., Inc.
June 4, 2015
Appellate Division, Third Department

Plaintiff, a mason, was delivering and collecting materials from a 3rd floor balcony to and from the masons as they worked on scaffolds erected alongside a building when the scaffold frame fell and struck him.  Plaintiff testified that the frame did not fall from a scaffold that was erected and in use on the balcony.  The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and partially granted defendants’ cross-motion to dismiss the common-law negligence and §§ 200 and 241(6) claims.

Labor Law § 240(1) (DRA)

The First Department held that plaintiff’s injury, caused by the tipping frame or scaffold component, did not fall within the protection afforded under the statute because the record indicates that, at most, the crossbar of the frame, which was upright but not connected to any other component or supporting any planking, was two feet above plaintiff’s head. 

Thus, the facts do no present a physically significant height differential and, while plaintiff was exposed to a general workplace hazard, he was not exposed to an elevation-related risk under the statute.  Accordingly, the Third Department reversed the trial court’s decision and granted defendants’ cross-motion to dismiss the Labor Law § 240(1) cause of action.

PRACTICE POINT:  The issue to be addressed here is just exactly what then is a hazard a general workplace hazard and when is it the type of hazard the statute was designed to protect workers from.  In the third, a bar falling from a scaffold just a few feet is not that type of hazard.  This is a very fact specific question and needs to be researched on a case by case basis and for falling objects such as this one the question really evolves into how much damage or injury could the object do if it falls just a short distance.

 

Labor Law § 241(6) (JAE)

The First Department then held that to establish a section 214 (6) claim, plaintiff “must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence”.  Here, the provisions set forth in 12 NYCRR subpart 23-5 apply to “scaffolds used in construction and demolition operations.” 

Defendants contended that because the scaffold frame was not in use, the regulations did not apply.  However, because plaintiff’s description of the work site, including his recollection that the scaffold frame was placed so proximately to a partially constructed scaffold, the court found, at the very least, questions of fact existed with regard to whether a scaffold was being assembled or disassembled on the work site. Accordingly, the claim premised on Labor Law § 241 (6) should not have been dismissed.

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

The Third Department agreed with the trial court’s determination to dismiss plaintiff's Labor Law § 200 and common-law negligence claims against Broadway, but reversed with regard to these claims as against BCI because the record confirms that neither Broadway nor BCI exercised sufficient supervisory control over plaintiff or his manner or method of work. The parties agree that only BCI maintained a consistent presence at the work site, but that it did not have any authority with regard to how plaintiff performed his daily tasks.  However, plaintiff testified he saw BCI's representative on the balcony just prior to his injury, and BCI conceded that their project supervisors were on site every day.  Accordingly, and because it is not disputed that BCI had general authority and control over the work site, the trial court should have denied the cross-motion for summary judgment against BCI as there are factual questions with regard to whether it had actual or constructive knowledge of the dangerous condition presented by the presence of the scaffold frame in plaintiff's immediate work area on the balcony.

Barros v Bette & Cring, LLC
June 11, 2015
Appellate Division, Third Department

Barros, an employee of Mid State, was working as an ironworker when he slipped and fell while shoveling snow at the construction site after being directed to do by his supervisor.  Defendant Bette & Cring were hired as the general contractor, and subcontracted the steel work to Stone Bridge, who then subcontracted its work in erecting steel to Mid State.

The trial court granted defendants’ motion to dismiss the complaint on the grounds that the § 200 claim was barred because Barros was injured by a hazard inherent in the work he was obligated to perform, and the court held the § 241(6) was barred because Barros was injured by the condition that he was charged with removing.   

Labor Law § 241(6) (JAE)

With regard to plaintiff’s section 241(6) claims, plaintiff cited 12 NYCRR 23-1.7 (d), which prohibits an employer from allowing an employee to use an “elevated working surface which is in a slippery condition.”  However, when the injury is caused by “an integral part of the work” being performed, 12 NYCRR 23.1-7 does not apply.  In other words, liability does not attach when the injury is caused by the “very condition [a plaintiff] was charged with removing.” 

Plaintiff contended that he has raised questions of fact based upon the Fourth Department’s decision in Hecker v State of New York (92 AD3d 1261 [2012], affd on other grounds 20 NY3d 1087 [2013]).

The Third Department held that while Hecker was not controlling, it nonetheless noted that the decision was distinguishable because it did noy involve a plaintiff who was specifically directed to remove the condition that caused his injury. Here, plaintiff was injured due to the condition that he was specifically charged with removing and submitted no evidence to contradict such a finding.  Thus, dismissal of his Labor Law § 241 (6) claims was proper.

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

The Third Department affirmed the dismissal of Barros’ Labor Law § 200 and common-law negligence claims, holding that defendants did not maintain supervisory control over Barros’ actions.  Further, dismissal was proper because the condition that caused his fall was a readily observable, inherent hazard.  Defendants met their initial burden by demonstrating that Barros’ employer was the only entity that exercised supervision or control over his work.  Plaintiff also failed to contradict a finding that he was engaged in remedying the defect that caused his injury.

Hedlund v Jamestown Pub. Schs.
June 12, 2015
Appellate Division, Fourth Department

Hedlund was working on a scaffold installing electrical boxes and conduit while masons employed by third-party defendant Gillette were working on the scaffold laying block on a wall.  Gillette owned the scaffold and planks.  As Hedlund was ascending from one level of the scaffold to another, he stepped down onto the center of the plank when the plank broke and he fell through.  Hedlund and his supervisor both testified the plank that broke was dry-rotted.  The trial court granted Hedlund’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied the School’s and the general contractor Picone’s cross-motions to dismiss the complaint. 

Labor Law § 240(1) (DRA)

The Fourth Department affirmed the trial court’s decision granting Hedlund summary judgment.  The trial court rejected the sole proximate cause argument that Hedlund launched himself or jumped from one level of the scaffolding to another because even assuming that Hedlund jumped, given the uncontroverted evidence of the condition of the plank, Hedlund’s actions were clearly not the sole proximate cause of the incident.

PRACTICE POINT:  Seems quite self-evident that if a plaintiff is walking on a scaffold and the board he is walking on fails and he falls that the safety device did not protect him from the elevation related risk.  Here the fourth held that even when the plaintiff jumps from one level to another that the failure of the safety device results in a violation of the statute.

 

Lopez v Fahs Constr. Group, Inc.
June 12, 2015
Appellate Division, Fourth Department

Lopez fell into a hole in a countertop while attempting to scrape asbestos from a 10-foot ceiling.  He testified that he stepped up onto a countertop in the corner of the room instead of using the ladders, scaffold or scraper bar that were in the room because using those items was either too dangerous or too difficult.  The trial court denied Lopez’s motion for partial summary judgment on his Labor Law § 240(1) claim, and denied defendants’ motions seeking dismissal of that claim and the § 241(6) claim based on Industrial Code regulation § 23-1.7(b).

Labor Law § 240(1) (DRA)

The Fourth Department affirmed denial of Lopez’s motion because there are triable issues of fact whether he had “adequate safety devices available,” whether “he knew both that they were available and that he was expected to use them,” whether “he chose for no good reason not to do so” and whether “had he not made that choice he would not have been injured.”

PRACTICE POINT:  Each element of the sole proximate cause defense must be established and a question of fact, or a disputed expert opinion, will create a situation where that element needs to be determined by a jury.  This is why an expert can be so helpful in determining if a safety device is adequate for the task and if it would have prevented the injury.

Labor Law § 241(6) (JAE)

The Fourth Department further concluded that the motion court properly denied those parts of defendants’ motions with respect to the Labor Law § 241 (6) claim insofar as they were based on the alleged violation of 12 NYCRR 23-1.7 (b) (1).  Contrary to defendants’ contention on their cross appeals, that regulation is sufficiently specific to support a section 241 (6) violation, and the court has held that it applies to any hazardous opening into which a person may step or fall  provided that it is one of significant depth and size.

 

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.

Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866 (2d Dept 2005);
Stafford v Viacom, Inc.,32 AD3d 888, 819 NYS2d 782 (2d Dept 2006);
Carty v Port Authority of New York and New Jersey, 32 AD3d 732, 821 NYS2d 178 (1st Dept 2006);
 Wrighten v ZHN Contracting Corp., 32 AD3d 1019, 822 NYS2d 115 (2d Dept 2006);
 Linkowski v City of New York, 33 AD3d 971, 824 NYS2d 109 (2d Dept 2006);
 Kawng Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 852 NYS2d 138 (2d Dept 2008);
 Hertel v Hueber-Breuer Const. Co., Inc.., 48 AD3d 1259, 850 NYS2d 806 (4th Dept 2008);
Temes v Columbus Centre LLC, 48 AD3d 281, 851 NYS2d 188 (1st Dept 2008);
 Riley v J.A. Jones Contracting, Inc., 54 AD3d 744, 865 NYS2d 225 (2d Dept 2008);
Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 865 NYS2d 689 (2d Dept 2008);
Mergenhagen v Dish Network Service, LLC, 64 AD3d 1170, 883 NYS2d 405 (4th Dept 2009); 
Fassett v Wegmans Food Markets, Inc., 66 AD3d 1274, 888 NYS2d 635 (3d Dept 2009); 
Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 902 NYS2d 674 (3d Dept 2010);
Booth v Seven World Trade Co., L.P., 82 AD3d 499, 918 NYS2d 428 (1st Dept 2011);
Reavely v Yonkers Raceway Programs, Inc., 88 AD3d 561, 931 NYS2d 579 (1st Dept 2011);
Hecker v State, 92 AD3d 1261, 937 NYS2d 815 (4th Dept 2012);

Bradley found issue of fact whether ∆ had actual or constructive notice of wet condition of elevated loading platform when π fell from platform as alleged result of accumulation of water.
Stafford, who slipped on glue being applied to install carpeting on floor tiles near his work area, not allowed to amend complaint b/c applying glue on floor was integral part of installation of carpeting or floor tiles.
Carty held reg inapplicable where π attributed slip & fall to fact that tunnel was dark and without light.
Wrighten found issue of fact whether construction manager and HVAC contractor were “general contractors” and whether reg violated when π’s slip & fall occurred on wooden ramp wet with rain water.
Linkowski found issue of fact whether owner violated reg by allowing slippery condition to exist on stairway landing.
Kwang held reg inapplicable when unsecured ladder π working on allegedly slipped out from underneath him b/c π not provided with any devices listed under reg.
Hertel held reg did not apply when π slipped & fell on patch of ice on concrete slab in unenclosed area b/w 2 buildings under construction while unrolling blanket to protect slab from becoming covered with snow overnight b/c π did not slip on elevated work surface & not using area where he fell as passageway.
Temes found issue of fact whether someone in chain of construction project was negligent in failing to exercise reasonable care to prevent or remediate hazard where π slipped & fell on ice covered by construction dirt.
Riley held contractor not liable where π tripped on a brick while standing on elevated scaffold b/c π failed to prove scaffold surface was slippery; but ∆ not entitled to summary judgment b/c issue of fact existed as to whether brick which π tripped was integral to work performed or was “debris” under reg.
Galzka held reg not implicated b/c wet plastic/asbestos fibers neither “foreign substance” nor “debris” where plastic specially designed & required to collect accumulation of fibers during asbestos removal & other reg required asbestos fibers to be constantly wet so as to prevent them from filling the air.
Mergenhagen held reg applied where π slipped & fell off roof of residence where he was installing satellite dish. 
Fassett held mud on backhoe’s battery cover that π slipped on “foreign substance” under reg.
Cook held reg inapplicable b/c π fell in open area b/w sidewalk & building that was not passageway or walkway under reg.
Booth held storm in progress defense does not apply to claim under reg, and evidence π slipped on snow/ice raise issue of fact whether ∆ negligent b/c incident occurred seven hours after snow began and hours after other workers had been on the premises.
Reavely held reg did not apply where π slipped on waterproofing surface b/c tar was necessary for proper installation of waterproofing.
Hecker held reg inapplicable b/c π not using area in which he fell as a floor, passageway or walkway at time of fall.

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Labor Law Pointers

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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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