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Labor Law Pointers - Volume IX, No. 1

 
 

Labor Law Pointers

A Monthly Electronic Newsletter Addressing
New York State Labor Law Decisions and Trends

Volume IX, No. 1
Wednesday, December 4, 2019

 

From the Editor:
 
This issue starts our ninth year. 

I want to thank all of the readers over these years who have allowed us to help with their “situations,” and to thank the Labor Law team here at Hurwitz & Fine for their fine work in preparing this newsletter and defending our clients.  Over these years, we have not missed a deadline, though early on some came out very late.  My youngest son, now 13, had a habit of asking if I wanted to lay down with him “for just a second” when he went to bed.  Invariably, I would wake up at 3:00 AM, run downstairs to proofread it myself and send it out full of typos.  My daughter, now in her third year of medical school, had not yet started looking at colleges. My other daughter, now in law school, had not even started high school.  My older sons were only interested in hockey and soccer.  Times have changed. 

When we started, it was Marc Schulz and me--we did it all ourselves.  Now we have six full-time attorneys on the team, and we continue to grow.  With four attorneys in Buffalo and two attorneys downstate, we cover both ends of the state and travel where we are needed.  In addition to the Labor Law attorneys, we have our coverage team assisting in the risk transfer and coverage issues so intertwined with Labor Law cases, a unique advantage here at Hurwitz & Fine. Our 24-hour emergency response team has investigated construction accidents from Plattsburgh to New York City and Buffalo, and all points in between.  We have definitively proved that an attorney-lead investigation can be key to a good outcome for the client and the carriers.  I am so thankful for the opportunity we have been provided to represent you and your insureds, the trust we will never betray to do the best job possible in the defense of the lawsuit and pursuit of risk transfer opportunities, and the collaborative efforts we jointly pursue to seek advantageous early resolutions.  We look forward to many more years servicing our clients and carriers.  Keep those “situations” coming.

Do you have a situation? We love situations.  We are always here to help with your specific situation.
 
As we leave Thanksgiving behind us and move headlong toward Christmas, Hannukah and the New Year, we are all trying to finish up those last-minute tasks we promised would be done by the end of the year.  We are currently scheduling training sessions for the new year. If your organization would be helped by a visit, remember that we are available either in-person or via webinar for any topic Labor Law or risk transfer related.
 
This month, we have several photos provided by subscribers, and I have done my best to find a way to create a teaching moment for each of them. 
 
In our first photo, a snow plow has hit a power line and the power company said that it would be a few days before they could get a truck there with a ladder, but they did send a worker in a truck.  He simply had no way to access the power lines to fix the problem.  The neighborhood got together and volunteered to make a human ladder to allow the worker to get to the powerlines and fix the issue.  As he was up there working on the lines, the bottom neighbor sneezed dramatically, causing the entire human ladder to fall like a house of cards.  Fortunately, only the top guy from the power company, and the bottom guy who got landed on, were injured in any way.  Question: do either or both of them have a Labor Law case?
 

 
The power company employee on top has a § 240(1) case; he was not provided an adequate safety device and he fell; causing an injury.  The human ladder unfortunately is not, while quite cool, an adequate safety device.  The guy on the bottom does not have a valid § 240(1) claim.  He is not a person “so employed” and thus not a valid plaintiff in a Labor Law case.  Besides, he sneezed causing all the problems when the outage was being handled in such an inventive manner.
 
In our second photo, we have a tree trimmer who was hired by the owner of an apartment building to trim a tree on his property, which he fears may fall onto his building, causing damage.  There is no contract.  The owner of the tree trimming business takes not just one, but two ladders, and straps them to the tree and sends his employee up the ladder to trim the top of the tree.  The employee, herein after referred to as the plaintiff, tells his employer that it is not safe and is told that if he wants his job, he will get up there and trim that tree!  In a shocking turn of events, the plaintiff falls from the top of the second and highest ladder causing serious injury to his back, preventing him from ever working again in any capacity.  He then sues the building owner.  Two questions: does the plaintiff have a valid § 240(1) claim against the owner of the building, and does the building owner have a valid claim against the tree trimming business for negligently telling the plaintiff to work under conditions that are not safe and that they were warned by the plaintiff were not safe?
 

 
The answer to the second question is that while the injury to the plaintiff was severe, it is not “Grave” as defined by § 11 of the Workers' Compensation Law and thus Comp is the exclusive remedy available from the employer absent a contract providing contractual indemnity or contribution.  As to the first question, the plaintiff does not have a § 240(1) claim against the building and tree owner.  A tree is an organic entity and thus not composed of component parts, so it is not a “structure” as defined in the § 240(1).  Tree trimming or removal is simply not a covered activity under § 240(1).  Had the tree trimming been an essential element of a larger covered project, the plaintiff would have had a valid § 240(1) claim.
 
Here we have an electrician restoring power to a structure following a big storm.  He has wisely decided to sit on a plastic sheet to keep his pants dry but perhaps less wisely put his feet into a small pool.  Knowing as I do that water conducts electricity, it is not difficult to foresee the eventual outcome; where the plaintiff sustains a severe electrical shock.  Does he have a valid § 241(6) claim?
 

 
§ 23-1.13 covers electrical hazards, but I would hazard to say that the culpable conduct of the plaintiff will be large here.
 
For the final photo, we have two employees transporting a ladder to the work site.  When the front ladder carrier stops short and the rear employee is injured, what will be the determination?
 

 
This is not Labor Law case in any department.  That said, both will be determined to be stupid.
 
That is all we have for this month.  Thanks to all for reading. Please feel free to reach out to us at any time for any assistance or advice you may need.  As always, please distribute this newsletter as you wish, and anyone wishing to be added to the distribution list, just click on my name and send me an email requesting to be added and you will get a new edition the first Wednesday of every month.  Have a great December and we look forward to the new year and a new edition. 

Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Premises Pointers:  This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court, and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected]  to be added to the mailing list. 

Products Liability PointersComing Soon:  Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, products liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up-to-date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact V. Christopher Potenza at [email protected] to be added to the mailing list.


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, please do so here or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.

 

Castillo v Big Apple Hyundai
November 14, 2019
Appellate Division, First Department

 
Plaintiff, a laborer on a demolition project, tripped over a metal safe on premises that was owned by defendant/third-party plaintiff Safeguard. Safeguard entered into a contract with Red Hook I as the general demolition contractor to perform the demolition work for an ongoing project, which included demolition of the existing building, a car dealership, and the construction of a new building, a self-storage facility. Immediately thereafter, a second contract was entered into on the same date, between Safeguard and Red Hook II, a non-party, to perform the same demolition work at the premises.
 
Plaintiff testified the accident occurred when he and his work partner, Joel Ortiz, were carrying a piece of duct work out to the dumpster when he “bumped into a metal box that was there,” (a safe), with his right foot and then tripped and fell, striking his knee on the box. Plaintiff had been to the dumpster between 10 and 20 times that morning, removing debris before his accident. During those times, he did not see the safe and never saw the safe before the accident. He did not know who put the safe there or where it came from, and it was not his job to remove the safe. His work involved everything related to demolition; bringing down the walls and breaking the sheetrock. On the date of the accident, he was working in an “office” area of the building which he described as “one big room.”
 
Plaintiff brought suit against Safeguard alleging Labor Law § 240(1), § 241(6), § 200 and common law negligence claims. Third-party defendant cross-moved for summary judgment to dismiss the third-party action because Red Hook I was not a party to the operative contract for the demolition work. Red Hook I argued the initial contract was never operative because, on the same day it was signed, it was immediately replaced by a contract with Red Hook II. Red Hook I also argues Safeguard is not entitled to common law indemnification. Red Hook I further moved to dismiss plaintiff's Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
 
Labor Law § 241(6) (MAS)
The First Department held that Industrial Code (12 NYCRR) section 23-1.7(e)(2) was inapplicable to this case, as the safe plaintiff tripped over was integral to the work of removing debris from the premises. Therefore, the Labor Law 241(6) claim predicated upon a violation of that regulation was dismissed.
 
Indemnity Issues in Labor Law (SEP)
The court found a question of fact, based on ambiguities as to which contract governed the work being done, and which Red Hook entity was retained to do the work.
 
 

Goncalves v New 56th & Park (NY) Owner, LLC
November 14, 2019
Appellate Division, First Department

 
Plaintiff submitted an affidavit that he was struck by the entire chain hoist system, in support of his motion which affidavit contradicted his deposition testimony that he was struck only by the chain and averred. The trial court denied plaintiffs’ motion for summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (DRA)
The First Department unanimously reversed; finding the trial court correctly concluded that plaintiff’s affidavit should not be considered to the extent that it averred that he was struck by the entire chain hoist system, contradicting his deposition testimony that he was struck only by the chain itself. However, the affidavit was consistent with his prior testimony that he was struck by the chain from above, and the record contained no evidence to the contrary. Accordingly, the Court held plaintiff demonstrated that the chain hoist system at issue failed, causing plaintiff to be struck by an object - either the chain hoist system or just the chain itself - from above, and thereby established their prima facie entitlement to summary judgment on the Labor Law § 240(1) claim. In opposition, defendants failed to raise a triable issue of fact.
 
PRACTICE POINT:  No question of fact is established where, as here, differing versions of the accident do not create a scenario where one of the versions removes the plaintiff from the protections of the Labor Law.  Here, in either version, the plaintiff was struck by a falling object, that should have been secured, thus created a prime facie case under §240(1).
 


Sanchez v et Eli Co. Del, LLC
November 14, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he fell from a scaffold. The trial court granted plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1). 
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding there was no dispute that the scaffold supplied to plaintiff, and that he was directed to use, lacked railings, and he was not provided with any other safety devices. Plaintiff was not required to show that the scaffold was defective. In opposition, defendants failed to raise a triable issue of fact.
 
PRACTICE POINT:  The plaintiff fell from a scaffold which lacked appropriate safety devices, namely railings, and thus there was a prima facie case under §240(1).  In addition, the plaintiff was directed to use a scaffold which was not appropriate, due to the lack of railing.  Thus, there was no opportunity to argue sole proximate cause.
 
 

Singh v New York City Hous. Auth.
November 14, 2019
Appellate Division, First Department

 
Plaintiff fell from a 10-foot-high sidewalk bridge he was helping to assemble on defendant's property, when a pile of heavy wooden planks allegedly shifted and struck him on the legs, causing him to lose his balance. The side barriers for the sidewalk bridge were not yet built, and plaintiff was not supplied with a safety harness to protect him from gravity-related harm. The trial court denied his motion for partial summary judgment on his Labor Law § 240(1) claim. 
 
Labor Law § 240(1) (DRA)
The First Department unanimously reversed and held plaintiff established prima facie entitlement to partial summary judgment on his Labor Law § 240(1) claim with his deposition testimony, photographic exhibits and expert's opinion. The Court found defendant’s argument that the deposition testimony and photographic evidence were inadmissible was not persuasive because a movant's submission of its own deposition testimony is deemed to be an adoption of such testimony as accurate, and therefore admissible. The Court also rejected defendant's argument that plaintiff's motion for partial summary judgment was premature, where defendant's expert opined that depositions of the contractor's personnel, yet to be taken, might yield evidence that plaintiff was supplied with a fall-arrest safety harness, and that he was recalcitrant in not using it. The court held the argument it lacks factual support in the record, and as such, the expert's opinion in that regard was found to be speculative and non-probative. The record further showed that defendant had a reasonable opportunity to pursue discovery and had not shown that it was diligent in pursuing discovery.

PRACTICE POINT: The mere hope that additional discovery may lead to sufficient evidence to defeat a summary judgment motion is insufficient to deny such a motion.
 
 

Wortham v Port Auth. of N.Y. & N.J.
November 14, 2019
Appellate Division, First Department

 
Plaintiff allegedly was injured when he fell while working at The George Washington Bridge Bus Station in Manhattan. He filed suit against the Port Authority, which owned the bus station, and a construction contractor at that location. The trial court denied the Port Authority’s motion to dismiss the claim alleging violations of Labor Law §§ 240(1), 241(6) and § 241-a. 
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding “[t]he Port Authority is an interstate compact agency and as such, is not subject to New York legislation governing internal operations'. . . unless both New York and New Jersey have enacted legislation providing that the same is applicable to the Port Authority” (Matter of Lopez v Port Auth. of N.Y. & N.J., 171 AD3d 500, 501 [1st Dept 2019]). “However, the Port Authority, albeit bistate, is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public” (id., quoting Matter of Agesen v Catherwood, 26 NY2d 521, 525 [1970]). More particularly, courts have repeatedly held that the Port Authority is subject to New York Labor Law (see e.g. O'Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27 [2017]
 
PRACTICE POINT:  As the Labor Law is a New York law involving health and safety, it is applicable to the Port Authority and it is a valid defendant in a Labor Law suit where the accident occurs in NY.
 
 

Wolodin v Lehr Constr. Corp.
November 19, 2019
Appellate Division, First Department

 
Plaintiff, an electrician, allegedly was injured while preparing a commercial office space for demolition. He was standing on an A-frame ladder when he cut into a wire that he believed, based on his testing, was not carrying electricity, but was, in fact, electrified with high voltage. As a result, he received a shock and fell from the ladder. The trial court denied defendants’ summary judgment motion dismissing the Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code regulation 23-1.13(b)(4) and granted plaintiffs’ cross-motion for partial summary judgment on the issue of liability on that claim. 
 
Labor Law § 241(6) (MAS)
Industrial Code regulation 1.13(b)(4) provides that no “employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of his work unless the employee is protected against electrical shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”
 
The First Department rejected defendants’ argument that the word “or” in the regulation establishes that a circuit can be rendered safe for workers by de-energizing and grounding or guarding it by effective insulation or other means. The evidence undeniably showed that plaintiff, while performing his work, was permitted to come into contact with an electrical circuit that had not been de-energized, as required under 1.13(b)(4). Because he was asked to disconnect the electrical wiring throughout the office, and to do so, he needed to cut through the wires directly, the Court held that the degree of insulation is simply not relevant since the circuit was not “guard[ed] … by other means.”
 
 

Pierrakeas v 137 E. 38th St. LLC
November 26, 2019
Appellate Division, First Department

 
Plaintiff either slipped from the rung of the ladder or the ladder tipped over as he sought to steady himself while descending it and was injured. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department unanimously affirmed; finding that under either scenario, plaintiff's testimony established prima facie that defendant failed to provide a safety device to insure that the ladder would remain upright while plaintiff used it to perform his statutorily covered work, and plaintiff was not required to show that the ladder was defective. In opposition, the Court held defendant failed to raise an issue of fact as to whether plaintiff’s placement of the ladder where he could fall or step onto a stack of sheetrock was the sole proximate cause of his accident, since it presented no evidence that the appropriate equipment was available to plaintiff. Moreover, because plaintiff established defendant failed to provide an adequate safety device to protect him from elevation-related risks and that failure was a proximate cause of his injuries, any negligence on plaintiff's part in placing the ladder near the sheetrock was irrelevant.

PRACTICE POINT:  Lets go over the 5 necessary elements of a sole proximate cause defense. 
1)         There must be an appropriate and adequate safety device.
2)         The safety device must be available to the plaintiff.
3)         The plaintiff must have been instructed, or know that he was expected, to use the appropriate and available safety device.
4)         The plaintiff must fail to use or must misuse the available and appropriate safety device.
5)         The plaintiff’s failure to use or misuse of the safety device must be for no good reason.
 
Failure to meet any of these elements will make the sole proximate cause defense unavailable to the defendant. 
 
 

Coleman v URS Corp.
November 21, 2019
Appellate Division, First Department

 
Plaintiff was injured when an air hose and other components of a chipping gun disconnected from the gun and struck him, causing him to fall 10-15 feet down a 30-degree incline meant for an escalator. Plaintiff argued Defendants were agents of the property owner and/or the general contractors who hired Plaintiff's employer to perform certain work for the project. Additionally, Plaintiff argued each Defendant either supervised, managed, and/or controlled the work performed in connection with the project, and therefore, each defendant was liable for his injuries.  The trial court dismissed the complaint as against URS Corporation-New York. 

Labor Law § 240(1) (DRA)
The First Department unanimously affirmed as Defendants submitted an affidavit from the Vice President of Defendant URS NY, stating URS, URS Greiner, and URS Group were not involved with the project. Additionally, Defendants submitted the affidavit of the General Manager of Defendant Bechtel, stating Bechtel assigned all of its rights to URS NY in 2007, and Bechtel was not involved with the East Side Access construction project at the time of Plaintiff's incident.

Plaintiff did not offer any evidence to demonstrate that URS, URS Grenier, URS Group, and Bechtel were involved with the East Side Access construction project on the date of the incident. The Court found the record demonstrated conclusively that URS Corporation-New York, the program manager on the construction site where plaintiff was injured, did not have the authority to supervise and control the injury-producing work and, therefore, was not a statutory agent of the project owner or general contractor for purposes of the Labor Law.

PRACTICE POINT:  Once again to be a valid Labor Law defendant as an agent to either the owner or the contractor the defendant must have the authority to supervise, direct or control the injury producing work.  Read the contracts, please.  This is most often the source of the authority establishing or eliminating the Labor Law liability.
 
Labor Law § 200 and Common-Law Negligence (ESB)
As with the other Labor Law causes of action, the Court found that defendant URS Corporation-New York, did not have the authority to supervise and control the injury-producing work, and was therefore not a statutory agent of the project owner or general contractor for purposes of the Labor Law.
 
 

Sanders v Sanders-Morrow
November 20, 2019
Appellate Division, Second Department

 
Plaintiff allegedly was injured when he fell from a ladder while removing gutters from a home.  The property was formerly owned by Willie Mae Morrow who passed away intestate, so his surviving children, defendants Carolyn Sanders-Morrow and Dolores Morrow, inherited it. According to plaintiff, he was hired by Carolyn, who is also his mother, and William Morrow, who is Dolores' son and his cousin, to remove gutters from the subject property. The trial court granted the separate motions of Carolyn Sanders-Morrow, William Morrow, and Dolores Morrow for summary judgment dismissing the complaint against them and denied plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim.
 
Labor Law § 240(1) (DRA)
The First Department affirmed; finding that Dolores and Carolyn made a prima facie showing that they were entitled to the benefit of the homeowners’ exemption. The property is classified as a one-family dwelling. Although it is divided into separate living areas, it is occupied by Dolores and Carolyn, who are sisters, and Dolores' son, William. The property has only one front entrance, and the second and third floors are accessible by interior staircases. Further, Dolores, Carolyn, and William each contribute $500 per month into a bank account jointly held by William and Carolyn for the purpose of paying common household expenses, such as taxes, gas, and repair work to the common areas and exterior of the subject property. As such, the subject property functions exclusively as a private family home and falls within the scope of the exemption. The Court also held that the parties’ deposition testimony also established, prima facie, that defendants did not direct or control plaintiff's work.  
 
As to William, the Court held that he was not entitled to the protection of the homeowner's exemption because he was not an “owner” under Labor Law §§ 240(1) and 241(6). William, however, demonstrated his prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 240(6) claims by establishing that liability could not be imposed upon him as a contractor or agent under the Labor Law because he lacked the authority to supervise or control the plaintiff's work. In opposition, plaintiff failed to raise a triable issue of fact.
 
PRACTICE POINT:  My sole thought as I read this was that Thanksgiving dinner must have been a hoot.  Suing family is always fun, and here, they all lived together as well.  Recall that it is the use or intended use of the home that governs, and here clearly the home was one structure, not subdivided, and shared by family members who shared in the expenses.  That does not make it a multi-family dwelling.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division affirmed dismissal of the causes of action alleging violation of Labor Law § 200 and common-law negligence.  The Court noted that this case was not a “dangerous condition on the premises” case and, instead, arose out of the manner in which the work was performed.  It held the defendants met their burden of demonstrating they did not have the authority to control, direct, or supervise the method or manner in which the plaintiff's work was performed, and plaintiff failed to raise a triable issue of fact in opposition.
 
 

Dziadaszek v Legacy Stratford, LLC
November 8, 2019
Appellate Division, Fourth Department

 
Plaintiff allegedly fell to the ground after opening and exiting the door of a construction trailer to stop a coworker from performing improper work. The exterior door that plaintiff exited was one of two doors on the trailer and did not have stairs attached. Legacy Stratford owned the construction site; FAC Downtown is a member of Legacy Stratford; and Legacy Development was the general contractor for the project (collectively the Legacy defendants). The Scotsman defendants leased the construction trailer to Legacy Development. The trial court granted Legacy Stratford’s, FAC Downtown’s, and Legacy Building’s motions, in addition to the cross-motion of Algeco Scotsman and Williams Scotsman, for summary judgment and denied plaintiff’s cross-motion for spoliation sanctions.
 
Labor Law § 240(1) (DRA)
The Fourth Department unanimously reversed; finding that defendants failed to establish, as a matter of law, that plaintiff’s actions were the sole proximate cause of the accident, i.e., that there was a staircase by which plaintiff could have exited the trailer, that he knew that a staircase was available and that he was expected to use it, that he chose for “no good reason” not to use it and that, if he had not made that choice, he would not have been injured. 
 
The Court rejected plaintiff’s spoliation argument since he failed to establish that the Legacy defendants intentionally or negligently disposed of the video footage from the construction trailer because the record showed that the video was automatically overwritten within 17 days of the accident and several months before plaintiff’s filed the action. Nor did plaintiff make an affirmative request for any video footage until nearly 2½ years after the accident.
 
PRACTICE POINT:  The fourth has a shot gun reversal and does not specify on what grounds the sole proximate cause defense fails.  This looks to me like a perfect sole proximate cause defense case, argued by a very good defense attorney.  Plaintiff knew that there were stairs at the door he entered through and thus knew they were available, it appears obvious that exiting through the door without steps is a thing that a plaintiff should know not to do, and what “good reason” could he have for using the door without steps?  The Labor Law is Draconian and inexplicable at times.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division also reversed the trial court’s order granting summary judgment on defendants’ motions to dismiss the Labor Law § 200 and common-law negligence claims based on defendants’ failure to meet their burden of proof on sole proximate cause.
 
 

Kuligowski v. One Niagara, LLC
November 8, 2019
Appellate Division, Fourth Department

 
Plaintiff allegedly was injured when he picked up a loose piece of duct work for an industrial air conditioner. The piece of duct work, which had been removed from its original pallet and placed, unsecured, atop another pallet, fell from a forklift that was transporting the material to the loading dock of premises owned by defendant One Niagara and managed by plaintiff's employer on behalf of One Niagara's tenant. The trial court denied One Niagara’s motion and defendant R.B. U’Ren’s cross-motion for summary judgment dismissing the Labor Law § 241(6) claim.
 
Labor Law § 241(6) (MAS)
The Fourth Department unanimously affirmed; rejecting defendants' argument that plaintiff’s actions, rather than any negligence on behalf of defendants were the superseding cause of the accident. The Court found defendants failed to establish, as a matter of law, that it was unforeseeable that plaintiff would pick up the piece of duct work that fell to the ground. Given that plaintiff’s job required him to ensure that the transport of the materials was done safely and efficiently, it was reasonably foreseeable that he would take it upon himself to pick up a loose piece of duct work that had fallen to the ground.
 
As for Industrial Code regulations 9.8(e), (h) and (j), the Court found them sufficiently specific and that defendants failed to show that 9.8(j) was not violated given the evidence that the forklift’s forks were raised two to three feet and given the dearth of evidence justifying that position. RB’s contention that it was not the “agent” of an owner or contractor was raised for the first time on appeal and thus was not properly before the Court.
 
Labor Law § 200 and Common-Law Negligence (ESB)
The Appellate Division, Fourth Department affirmed denial of R.B.’s motion as to Labor Law § 200 and common-law negligence, finding R.B.’s own submission raised a question of fact regarding whether the forklift driver was an R.B. employee and, therefore, whether R.B. controlled the injury-producing activity, i.e., whether it was involved in loading and transporting the ductwork that caused plaintiff’s injury. 
 

Lagares v Carrier Term. Servs., Inc.
November 15, 2019
Appellate Division, Fourth Department

 
Plaintiff allegedly was injured when he fell through the roof of defendant's building while working on a project involving the removal and replacement of the roof. The trial court granted plaintiff summary judgment on the Labor Law § 240 (1) claim and denied, in part, defendant's cross-motion for summary judgment dismissing plaintiff's amended complaint.
 
Labor Law § 240(1) (DRA)
The Fourth Department affirmed; finding that plaintiff met his initial burden by establishing that defendant's failure to provide any fall protection was a proximate cause of the accident. In opposition, the Court held defendant failed to raise a triable issue of fact whether plaintiff's own negligence was the sole proximate cause of his injuries because plaintiff's mere failure to follow safety instructions cannot be the sole proximate cause of the accident, as plaintiff's alleged conduct would amount only to comparative fault and, thus, cannot bar recovery under the statute.
 
PRACTICE POINT:  Once again the fourth is short on facts in this decision, which makes it difficult to follow and analyze.  Here the basic principle is, to have a valid sole proximate cause defense, there must actually be an available, appropriate safety device, that the plaintiff was instructed to use, which he failed to use or misused, for no good reason.  A plaintiff who ignores a general safety instruction is not the sole proximate cause of his injury.  Arguably, had the safety instruction been to use an appropriate and available safety device, the sole proximate cause defense would have been available.
 
Labor Law § 241(6) (MAS)
Considering above-findings, the Fourth Department held defendant’s appeal under Labor Law § 241(6) was academic.

 

12 NYCRR § 23-1.21 – Protection in Construction and Excavation Operations; Ladders and ladderways; General requirements for ladders; Maintenance and replacement.

Regulation § 1.21(b)(3), requiring that ladders must be maintained in good condition and cannot be used if they have broken members or parts, insecure joints between members or parts, wooden rungs or steps worn down to less than ¾ of their original thickness or any other flaw or material defect that can cause failure, is sufficiently specific to support a Labor Law § 241(6) cause of action.

Juchniewicz v Merez Food Corp., 46 AD3d 623, 848 NYS2d 255 (2d Dept 2007);
 
Przyborowski v A & M Cook, LLC., 120 AD3d 651, 922 NYS2d 56 (2d Dept 2014).
 

Juchniewicz held reg did not apply where π testified that he lost balance because of steel object that interfered with his grasping rung.

Przyborowski held reg sufficiently specific to support a § 241(6) cause of action.

 

 

Labor Law Pointers
 
Editor
David R. Adams

Associate Editor
V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

Associate Editor
Eric S. Bernhardt

Associate Editor
Brian F. Mark
 


Labor Law Team

 

 

David R. Adams, Team Leader
[email protected]
 

Dan D. Kohane
[email protected]                                           

Marc A. Schulz
[email protected]
           
Michael F. Perley
[email protected]

           
V. Christopher Potenza

[email protected]

Eric S. Bernhardt
[email protected]

Steven E. Peiper
[email protected]

Jennifer A. Ehman
[email protected]

Eric D. Andrew
[email protected]

Brian F. Mark
[email protected]

Michael J. Dischley
[email protected]
 

 

 

Hurwitz & Fine, P.C.
 
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
             
Long Island
535 Broad Hollow Rd., A-7, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Albany
Phone:  518-641-0398

Additional Offices
Albion  |  Amherst  |  Niagara Falls  |  Palm Beach Gardens  |  Toronto


Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
 
www.hurwitzfine.com
© 2019, Hurwitz & Fine, P.C. All Rights Reserved

 

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Copyright © 2019, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202
 

 

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