Labor Law Pointers - Volume V, No. 1
Wednesday, November 4, 2015
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation; we love situations and are here every day to address your situation.
As most of you know by now I love the funny and often disturbing photo sent to me by our readers displaying the craziest ladder and scaffold uses imaginable. Well this month it is not as insane as some, but it is a photo taken in the home of one of our readers who had a contractor doing work in his house. You will notice that the locking bar on the close side of the ladder is broken and just hanging down, offering no support to the ladder.
My advice is always the same anytime you have a contractor working in your home, leave and let them do as they will. Remember that there is an exception in 240(1) for “owners of one and two-family dwellings who contract for but do not direct or control the work” so if someone if working in your home you want there to be no question that you might have directed or controlled the work of the contractor. Remember that this is the means and method of the work, not mere scheduling or inspecting the progress.
It seems that we are into the winter mode of training in a big way. I have been traveling around and doing webinars providing training with several seminars on a variety of issue including the elements of a labor law case, the available defenses, risk transfer, opportunities for early resolution, investigation of labor law cases and appropriate expert retention. If anyone out there is looking for some training just let mem know and we can target it towards your needs and schedule it.
We have a team approach both to the defense of labor law cases and to our seminars which has me discussing the elements and defenses to a labor law case along with the contractual implications and Steve Peiper or Jen Ehman analyzing and explaining the various coverage issues and opportunities. They are true coverage attorneys and in many if not most labor law cases it is a hybrid of both labor law and coverage to it works well for our clients and carriers to have this team approach across the board.
We have some good decisions for you this month, but not to many of them. I would recommend that you read the actual decision in the Fazekas v Time Warner Cable, Inc. case below. It is a very well written decision and outline the elements as well as any casei have read, and boring as I am, I have read a lot of them.
Enjoy the edition and as always, feel free to call, email or stop by with any questions labor law related because we are not only here to help, we actually thrive on this stuff. Thanks again for reading and see you next month. David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
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.
October 15, 2015
Appellate Division, First Department
McCullough was allegedly injured while passing from an exterior roof on a construction project to an interior room, moved his left foot across a one or two-foot high threshold in a doorway when he stepped into an uncovered “drain hole” in the floor directly behind the threshold, causing him to fall.
The trial court granted the Bryant defendants’ motion to dismiss the Labor Law § 241(6) claim based on regulation (12 NYCRR) § 23-1.7(e)(1) as well as the § 200 and common-law negligence claims against them. The trial court denied Component’s motion to dismiss the common-law negligence claim against it, denied Component’s motion to dismiss the contractual indemnification cross-claim of the Bryant defendants’ and granted the Bryant defendants’ motion to dismiss Component’s common-law indemnification and contribution claims.
The First Department held that the motion court erred in granting the Bryant defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241(6) claim insofar as it is based on an alleged violation of 12 NYCRR 23-1.7(e)(1), which applies to tripping hazards in “passageways.” Contrary to the motion court’s finding, the doorway constitutes a passageway within the meaning of the regulation, and plaintiff raised an issue of fact as to whether the proximate cause of his injury was a tripping hazard within the passageway.
The First Department affirmed the denial of summary judgment to the Bryant defendants on the Labor Law § 200 and common-negligence claims as against them. It is immaterial that these defendants lacked supervisory control over plaintiff's work, since his injuries arose from the condition of the workplace, rather than the method used in performing the work. These defendants failed to make a prima facie showing that they lacked constructive notice of the uncovered drain hole and the defendants cannot meet this burden merely by pointing to gaps in plaintiff's proof.
Indemnity Issues in Labor Law (SEP)
The question of fact as to who would bear an allocation of negligence precluded any findings on the various common law indemnification claims. Further, the court also affirmed the trial court’s denial of Component’s motion to dismiss Bryant’s contractual indemnity claim. The clause at issue only provided protection where the loss occurred “in and about such place of the vicinity thereof.” With questions of fact over where, and how, Component completed its work, it followed that a dispositive decision on the indemnity clause was likewise premature.
October 15 2015
Appellate Division, First Department
Plaintiff was injured while painting over graffiti on a billboard leased by defendant Fuel. Plaintiff had a row of blocks in front of the billboard that served as counterweights to prevent it from tipping over, and while standing on a stack of three of the concrete blocks, he lost his balance as he reached up to loosen one of the straps holding the image to the billboard frame so he could paint underneath it.
The trial court granted plaintiff’s motion for partial summary judgment on his claim under Labor Law § 240(1) on the grounds that plaintiff was engaged in an elevation-related risk and was injured because of the failure of a safety device.
“To raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew that they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained.
Here, the First Department held the record includes conflicting evidence regarding whether plaintiff was provide with adequate safety devices but failed to use them, which raises a triable issue of fact whether his conduct was the sole proximate cause of his injuries because plaintiff had been given a truck equipped with a cherry picker arm that extended 80 feet with controls inside a basket, a safety harness and lanyard, and two ladders but plaintiff did not even attempt to use any of these devices as he used the blocks as a platform.
The majority also found an issue of fact as to whether safe alternative means of painting the billboard were available to plaintiff and whether his failure to use those means was the sole proximate cause of his accident as Fuel’s expert stated “there were numerous locations on the billboard and its frame where the plaintiff could have tied off, including but not limited to the tubing and piping out of which the billboard frame was constructed.” Thus, the majority reversed the trial court’s decision to grant plaintiff summary judgment.
Justices Mazzarelli and Richter would have affirmed the trial court’s decision to award plaintiff partial summary judgment as none of the devices furnished to him were adequate to the task at hand. The dissent noted that Fuel’s expert only stated in bare conclusory fashion that the ladders were adequate for plaintiff to perform his work, and that Fuel offered no evidence to contradict plaintiff’s testimony that the basket on the cherry picker could not have reached the appropriate angle to make the painting feasible. Moreover, Fuel’s expert did not explain how plaintiff could have safely employed the cherry picker to reach the section of the billboard where the graffiti was located.
The dissent further disagreed with the majority’s holding that an issue of fact existed whether there were numerous locations on the billboard and its frame where plaintiff could have tied off because Fuel’s expert was required to state for each item in which he opined plaintiff could have attached his safety harness, that each item had the physical properties necessary to support plaintiff’s weight if he fell, and to set forth the steps that he took on his site visit to reach that conclusion.
PRACTICE POINT: Always have an expert where available to establish if a safety device is adequate for the task. Here had either side not had an expert they would have lost the motion. I wonder about the decision to the extent that there is testimony that the cherry picker lift was successfully used in the past and thus, it would seem to me, was certainly able to be used for the job. Maybe the justices were not convinced that even though it could be used for the job, that it was not the appropriate safety device. There are 2 dissents so we may not have heard the last of this one, but as the decision is not final it would require that the case be tried to get to the Court of Appeals and make it final.
October 22, 2015
Appellate Division, First Department
Defendant 1515 Broadway owned a building and Structure Tone was the general contractor for a build-out who hired FRP for HVAC work. FL Mechanical, Scekic’s employer, was hired by third-party defendant React to actually perform the work. Structure Tone’s project superintendent asked Scekic to move a pipe that was hanging too low on the first floor and blocking installation of the dry wall ceiling. Scekic used a ladder and proceeded to work on moving the pipe when the ladder broke, causing him to fall fifteen feet to the concrete floor.
The trial court granted plaintiffs’ partial summary judgment on his Labor Law § 240(1), and granted in part and denied in part the various motions of defendants and third-party defendants’ motion for contractual indemnification, common-law indemnification and contribution, and to dismiss the Labor Law § 200 and common-law negligence claims against FL Mechancial, React, FRP, Structure Tone and SL Green
The First Department affirmed the trial court’s decision to grant Scekic summary judgment because Scekic submitted proof that the ladder was defective or that it slipped, tipped, was placed improperly or otherwise failed to provide support.
Interestingly the owner of the ladder, Schindler, was found not to be liable as the ladder was used without their permission or knowledge and they would have denied permission had they been asked, in spite of the fact that it was their ladder which failed and caused the injury. This is addressed more closely by Steve Peiper below.
PRACTICE POINT: Hard to argue that the safety device, a ladder in this case, was appropriate when it breaks causing the plaintiff to fall. As to the owner of the ladder, Schindler, it supports my often provided counsel, never voluntarily loan a safety device of any type, at any time, for any reason.
The First Department affirmed the denial of summary judgment to defendant Structure Tone regarding Scekic’s Labor Law §200 claims, finding an issue of fact as to whether Structure Tone's project superintendent instructed plaintiff to use another contractor’s ladder (which broke) in express contravention of the project's work rules, and whether that potential negligence was a proximate cause of plaintiff's accident.
Indemnity Issues in Labor Law (SEP)
Initially, the court addressed common law indemnity claims against the Schindler. While Schindler owned the ladder from which plaintiff fell, the Record establishes that the ladder was used without Schindler’s knowledge or consent. Accordingly, the court held that imposing liability upon Shindler “stretches the concepts of duty and foreseeability too far.”
The owner moved for summary judgment seeking common law indemnity against Structure Tone. However, a review of the owner’s Answer revealed that no cross-claim for indemnity was ever asserted against Structure, and as such one could not be created as part of a summary judgment motion.
Finally, with respect to the various contractual indemnity claims between Structure Tone, React, FRP and FL Mechanical, the court held that multiple questions of fact prevented any finding as a matter of law. Contractual indemnity claims will be addressed, if still relevant, at the conclusion of trial which, presumably, will resolve the outstanding questions related to what entity owed what duties, and to whom.
October 14, 2015
Appellate Division, Second Department
Banscher was allegedly injured while installing shingles on a pitched roof when another worker’s water jug rolled down the roof and struck him, causing him to fall onto the surface of the roof. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and granted defendants cross-motion to dismiss that claim in addition to the common-law negligence and violations of §§ 200 and 241(6) claims.
The Second Department affirmed the trial court’s decision granting summary judgment to the general contractor defendant on the common-law negligence and Labor Law § 200 claims. To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed at a work site, an owner or manager of real property must have authority to exercise supervision and control over the work at the site. The right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence.
Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition. Where an accident is alleged to involve both a dangerous condition on the premises and the “means and methods” of the work, 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.
Here, the defendants established, prima facie, both that they did not create or have actual or constructive notice of the allegedly dangerous condition which caused the injured Banscher’s accident, and that they did not have the authority to supervise or control the means and methods of his work. In opposition, Banscher failed to raise a triable issue of fact.
October 2, 2015
Appellate Division, Fourth Department
Plaintiff was struck by a backhoe that was backing up at a road construction site. The Court of Claims granted defendant’s motion for summary judgment dismissing the Labor Law § 241(6) based on Industrial Code regulation 23-9.5(g).
The Fourth Department concluded the last sentence of the regulation does not contain a specific, concrete standard that will support liability under Labor Law § 241 (6). “In order to support a claim under section 241 (6) … the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles.” Here, the regulation states that “every mobile power-operated excavating machine … shall be provided with an approved warning device so installed as to automatically sound a warning signal when such machine is backing” and the last sentence states “such warning signal shall be audible to all persons in the vicinity of the machine above the general noise level in the area. Such language, the court held, merely set forth a general standard of care insufficient to sustain the claim.
October 9, 2015
Appellate Division, Fourth Department
Fazekas allegedly was injured when the ladder he was standing on slid on snow and ice where it had been placed, causing him to fall the ground. Fazekas was installing cable service on behalf of his employer, a subcontractor for defendant. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and denied defendant’s cross-motion to dismiss the complaint except as to dismiss the § 200 and common-law negligence claims.
The Fourth Department affirmed the trial court’s decision to deny both parties’ motions, finding issues of fact whether Fazekas’ actions were the sole proximate cause of his injuries. Where, as here, a ladder slips and falls causing a worker to fall, the injured worker may assert a prima facie violation on the ground that the ladder was not so placed as to give proper protection. However, where the evidence establishes that “plaintiff had adequate safety devices available; that he knew both that they were available and he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured,” there will be no liability under the statute.
The court held Fazekas failed to meet his burden as his evidence raised an issue of fact whether his conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause as the building owner testified that on the day of the accident, he advised Fazekas that the ladder was not placed in a safe positon and offered to obtain safety equipment that would help remove ice from underneath the ladder and stabilize it but Fazekas rejected the offer. As Fazekas failed to meet his burden, the court did not even consider defendant’s submissions in opposition.
However, the court considered defendant’s submissions, which failed to establish that Fazekas knew that he was expected to use “available, safe and appropriate equipment” offered to him by the owner and thus failed to establish that plaintiff “chose for no good reason not to” use the equipment.
PRACTICE POINT: This case is one of the clearest decisions outlining the progression the court follows in evaluating a labor law case that you will see. In case you have forgotten, simply by clicking on the case name above while holding the Ctrl key, the hyperlink will take you directly to the official decision. I recommend reading this one as written by the court as it truly outlines the standard very well.
Critical to us as individuals handling labor law cases is an understanding of the plaintiff’s prima facie case, outlined here as established when a ladder slips causing a plaintiff to fall, and the elements of the sole proximate cause defense, when the plaintiff has an 1) available and 2) appropriate safety device which he 3) was instructed to use or knew he was expected to use which he for no good reason fails to use or misuses.
With regard to Labor Law § 241(6), the Fourth Department affirmed the trial court’s denial of Fazekas’ motion seeking partial summary judgment. The Court clarified the application of § 241(6) advising that even assuming, arguendo, that Fazekas established defendant violated certain Industrial Code regulations such violation “does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence.” Furthermore, where, as here, there was an issue of fact on Fazekas’ alleged comparative negligence, summary judgment to plaintiff was inappropriate.
The Fourth Department affirmed the dismissal of the common-law negligence and Labor Law § 200 causes of action as the defendant cable television provider established that it did not supervise or control the work at issue, and plaintiff failed to raise a triable issue of fact.
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.
Wowk v Broadway 280 Park Fee, LLC, 94 AD3d 669, 944 NYS2d 23 (1st Dept 2012);
Ghany v BC Title Contractors, Inc., 95 AD3d 768, 945 NYS2d 657 (1st Dept 2012);
Steinsvaag v City of New York, 96 AD3d 932, 947 NYS2d 536 (2d Dept 2012);
Doodnath v Morgan Contracting Corp., 101 AD3d 477, 956 NYS2d 11 (1st Dept 2012);
Stier v One Bryant Park LLC, 113 AD3d 551, 979 NYS2d 65 (1st Dept 2014);
Carrera v Westchester Triangle Housing Development Fund Corp., 116 AD3d 585, 984 NYS2d 339 (1st Dept 2014);
Bish v Odell Farms Partnership, 119 AD3d 1337, 989 NYS2d 719 (4th Dept 2014);
Borner v Fordham University, 124 AD3d 553, 998 NYS2d 635 (1st Dept 2015);
German v Antonio Development, LLC, 128 AD3d 579, 10 NYS3d 205 (1st Dept 2015);
O’Brien v Port Authority of New York, 131 AD3d 823, 16 NYS3d 533 (1st Dept 2015);
Wowk held reg relating to slipping hazards in passageways could encompass window washer’s claim relating to his fall down fixed exterior staircase that provided sole means of access to scaffold.
Ghany held reg inapplicable where π tripped over small stone while carrying a stone weighing 100 pounds across an open, grassy area.
Steinsvaag held reg inapplicable where π was assisting coworker in carrying door bucks off a truck on a wet ramp when the door buck struck π’s right shoulder b/c π could not establish his coworker lost his grip on door as he slipped on wet ramp without relying on speculative or inadmissible hearsay evidence.
Doodnath held reg inapplicable b/c π not caused to slip due to a slippery work surface but rather b/c he placed his right foot onto an allegedly wet & dirty plank that was stacked on top of other planks, 16 inches off surface of truck bed.
Stier held reg inapplicable where π’s accident was not the result of a failure to remove or cover a foreign substance and masonite was not a slipping or tripping hazard.
Carrera held an open, unpaved area where π was walking when he fell not a “passageway” within reg.
The majority in Bish held that π cement truck driver not engaged in construction work under reg when he fell while cleaning his employer’s truck on property owned by dairy farm operator, after just delivering load of cement. Justice Whalen’s dissent as there is evidence that π not only drove the truck but also operated its equipment & poured the concrete and in order to load a second load of cement the truck had to be washed out after first load was delivered & cleaning truck was essential part of erection of silo as it was required so π could continue bringing loads of concrete to enable to construction of silo to continue.
Borner held reg inapplicable b/c π fell in a parking lot & not “a floor, passageway, walkway, scaffold, platform or other elevated working surface.”
German held reg did not apply to π injured in an open courtyard b/c accident did not occur on a floor, passageway, walkway, scaffold or other elevated working surface.
O’Brien found issue of fact whether someone within chain of construction project had notice of hazardous condition where π slipped & fell down stairs of a temporary tower scaffold.
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Labor Law Pointers
David R. Adams
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Steven E. Peiper
Jennifer A. Ehman
Marc A. Schulz
Labor Law Team
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Michael F. Perley Jennifer A. Ehman
V. Christopher Potenza Marc A. Schulz
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
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