Labor Law Pointers
Volume VI, No. 1
Wednesday, November 2, 2016
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 available every day to assist in analyzing and solving your specific situation.
Our worlds are full of milestones, some have more meaning than others to us, but it always surprises me when a milestone I thought to be minor, to someone else is important. I say this because today we start in on the first edition of the sixth year of putting out Labor Law Pointers. To me it seemed about right, but my 10 year old son he was amazed. For him it is half of his life, he always asks when he sees me at my computer if tonight is newsletter night. He said that he thought that I had always had done it and was amazed that it was only 5 years. Appreciation of time is not something that kids do well. For me it has been a wonderful run. I have, for the past 15 years at least, had an automatic search run on Westlaw every day pulling up al labor law cases for me to read. After starting at Hurwitz & Fine and reading Dan’s Coverage Pointers it was an obvious extension for me to put together Labor Law Pointers. It was an area of the law I enjoyed, an area I had concentrated my practice in and an area I had lectured in. I have thoroughly enjoyed doing this for the past 5 years and ii hope you have enjoyed it as well, and maybe even learned something along the way.
I would be remiss if I did not thank those who make this publication possible, Steve Pieper (risk transfer and indemnity), Chris Potenza (200 cases and negligence), Jennifer Ehman (241(6) cases) and Marc Schulz (labor regulations). They are a wonderful, smart and dedicated group of attorneys I am happy to call my colleagues and friends. Feel free to reach out to any of us with any questions labor law or risk transfer related. I also need to thank Dan Kohane for his example and providing me with a blueprint for getting out a newsletter. It is a lot of work to get a newsletter out every month. Dan warned me when we started that it would be difficult, and it has been. For any of you who are not subscribers to Coverage Pointers I recommend that you contact Dan at [email protected] and he will get you on the distribution list.
We have gotten Labor Law Pointers out every month, through trials, on holidays and today, through sickness. My son was sick for several days and it caught up with me yesterday at about 4:00, and this is the first time I have been out of bed since that time and I still feel like I was hit by a truck.
I also need to recognize my partner and Hurwitz & Fine member Audrey Seeley and congratulate her on election as a National Director of DRI. This is a serious accomplishment, especially for someone so young. She was previously Chair of the Insurance Law Committee, one of DRI’s largest and most active committees. To put it mildly, we are very proud of her and her accomplishments. Well done Audrey.
I have a bunch of photos this week, some of them allow us to address a specific point and some are just funny. The first poses, for me, the question of whether there is an opportunity to pursue a sole proximate cause defense assuming an appropriate safety device in the area, or, does the sign this future plaintiff is standing on, which requests that all workers work safely and think safety is sufficient as instruction to the plaintiff to use a ladder as opposed to simply standing on the top of the sign. I do not think that this is sufficient instruction alone to support a sole proximate cause defense, but I would certainly argue that it was.
In the next photo we have a future plaintiff on a ladder supported, if fact held in the air, by co-workers. The question of whether this is an appropriate safety device crosses my mind. The answer is that the courts, with very few exceptions, do not consider a co-worker as a safety device and thus the future plaintiff in this photo has a valid labor law case as he was not provided with an adequate safety device.
Here we have what just looks to me like a bad idea, homemade ladder which if it he falls will not be an adequate safety device, being held by a co-worker, not a safety device and climbing into a rats nest of live wires, all apparently very bad ideas.
Here we have, again, co-workers as fall restraint devices, not going to end well for the defense if, or rather when, he falls.
A 241(6) case in the making, if this does not violate numerous regulations then I am just in the wrong business. The saving grace here is that 241(6) allows for culpable conduct of the plaintiff as an offset. If there is not 100% culpable conduct on the plaintiff here, when his back is struck by the circular saw, then I know nothing about juries. A picture is worth a thousand words they say, and I would show this one to the jury every day of the entire trial.
Well that is what we have for this month, enjoy your November and Thanksgiving, it is my favorite holiday with the three fs, food, family and football. Enjoy and we look forward to next month’s edition. Remember to call or email with any questions, they always make my day.
David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Direct: 716.849.8916
Fax: 716.855.0874
Cell: 716.553.6901
Email: [email protected]
H&F Website: www.hurwitzfine.com
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.
October 4, 2016
Appellate Division, First Department
Plaintiff was tasked with moving steel beams that had been brought on a flatbed truck to be lifted off the trick by a crane and hoisted for installation. While plaintiff was standing on the beams to wrap steel rope around the beam for it to be hoisted, a piece of flat wooden skids a/k/a dunnage separation the beams broke, causing plaintiff to fall off the truck 13-14 feet to the ground.
Plaintiff testified he was wearing a harness at the time of the incident but it had not been tied off with a lanyard. He typically wore the harness all day but no one told him or recommended to him that it be tied off while he was working on the flatbed truck before his incident. At his 50-h, plaintiff testified it would have been “more dangerous” to tie off while working on the truck because then “you wouldn’t be able to … get out of the way if something happened.” He also confirmed he was given all the safety equipment he needed or wanted.
Plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim as he fell from a height while standing atop a load of stacked steel beams and defendants failed to provide him with proper, adequate safety protection or devices which proximately caused his incident. Defendant cross-moved arguing plaintiff’s incident did not fall under the protections of the statute as he was simply unloading steel from a flatbed truck which has been held to not constitute an elevation-related hazard and plaintiff could not demonstrate that any of the enumerated safety devices in the statute would have prevented his fall.
The trial court granted plaintiff’s motion and denied defendant’s cross-motion as plaintiff was “working at an elevation, some sort of protective device should have been used.” The court also noted the list of devices in Labor Law § 240(1) was not exhaustive.
The majority agreed with the trial court that defendants were liable under the statute for plaintiff’s injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer, citing to Naughton v City of New York, 94 AD3d 1 (1st Dept 2012] and Phillip v 525 E. 80th St. Condominium, 93 AD3d 578 [1st Dept 2012]).
Justice Tom dissents because plaintiff failed to “adduce proof sufficient to create a question of fact regarding whether his fall resulted from the lack of a safety device,” or identify any safety device that could have prevented the accident, such that his Labor Law § 240(1) claim should be dismissed, relying on Berg v Albandy Ladder Co., Inc., 10 NY3d 902, 904 [2008]). Although the circumstances in this case constitute an elevation-related risk greater than merely falling from the bed of a trailer, plaintiff’s injuries were caused by a “general hazard of the workplace, not one contemplated to be subject to Labor Law § 240(1).”
PRACTICE POINT: Recall that simply falling from a flatbed truck is not a risk which the labor law was designed to protect against. Where, as here, the fall was from a height above the bed of the truck, some 13 to 14 feet atop stacked steel beams, it can be, under the correct circumstances, a 240(1) case.
Cronin v New York City Tr. Auth.
October 4, 2016
Appellate Division, First Department
The trial court granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240(1) claim, and denied defendant’s cross-motion for summary judgment dismissing plaintiffs’ complaint.
The First Department held that plaintiffs made a prima facie showing of liability with respect to their claim by submitting evidence that defendant owner failed to provide plaintiff with an adequate safety device to perform his assigned task and that this failure proximately caused his injuries.
In opposition, the Court rejected defendants sole proximate cause argument that plaintiff failed to use one of the A-frame ladders kept in his employer’s van because defendant failed to rebut plaintiff’s testimony that he used defendant’s straight ladder, which did not have rubber footings, because the work space would not have allowed for the A-frame ladder to be opened. Nor was there any evidence that plaintiff was told not to use defendant’s ladder or that he knew not to use it.
PRACTICE POINT: Not surprising that if your argument is that the plaintiff should have used an A-frame ladder that you need to provide evidence that it was an appropriate safety device, which would include being able to be used under the circumstances of the accident, like would it fit in the area where the accident occurred. I like to use the deposition of co-workers and/or supervisors to establish that the safety device I am going to opine should have been used was available and able to be used in that spot. I then use an expert to establish that it is the appropriate safety device. It is better if you can have this all mapped out in your head before the first deposition, usually the plaintiff, is conducted.
October 11, 2016
Appellate Division, First Department
Plaintiff was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water and a rubber “rabbit” device. The trial court denied defendants’ motion for summary judgment dismissing the Labor Law § 240(1) claim, and granted plaintiffs’ cross-motion for partial summary judgment on the issue of liability on that claim.
The First Department reversed as the movement of mixture through the pipe failed to bring the mechanism of plaintiff’s injury within the ambit of the statute because it did not involve “the direct consequence of the application of the force of gravity to an object.” The Court noted the mixture of the pipe did not move through the exercise of the force of gravity, but was rather intentionally propelled through the pipe through the use of high pressure, relying on Medina v City of New York, 87 AD3d 907, 909 (1st Dept 2011).
PRACTICE POINT: While the courts have consistently expanded the scope of the labor law from the time of the Runner decision at least they have not here expanded it to include an injury not caused in any way by the force of gravity. Thus, for today at least, we can still assume that the injury needs to be caused, at least in some way, by the application of the force of gravity.
October 18, 2016
Appellate Division, First Department
Plaintiff was allegedly injured when a Bobcat ran over his left foot. The trial court granted defendants AGA and Skyward’s motion for summary judgment dismissing plaintiff’s Labor Law § 241(6) claims predicated upon alleged violations of Industrial Code (12 NYCRR) §§ 23-9.2(a), 9.5(c), 9.5(g) and 9.9(c)(4).
The First Department reversed finding that defendants were not entitled to summary judgment dismissing the Labor Law § 241(6) claims predicated on alleged violations of 12 NYCRR 23-9.2(a), 23-9.9(c)(4), or 23-9.5(g) because they failed to make a prima facie case showing that the Bobcat was not backing up when the accident occurred, as plaintiff testified that the Bobcat backed over his left foot with the left rear wheel of the machine. Nor did defendants show that the Bobcat was equipped with a back-up alarm. The affidavit they submitted was insufficient to satisfy their burden, since the affiant, who was not employed by plaintiff's employer at the time of the accident, did not inspect the Bobcat. He also failed to identify any relevant inspection or maintenance records. Thus, their motion should have been denied regardless of the sufficiency of plaintiff's opposing papers.
The court further found plaintiff was not entitled to partial summary judgment on his claim predicated on an alleged violation of 12 NYCRR 23-9.5(g) since a violation of the Industrial Code 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.”
The First Department did find, however, that defendants established entitlement to dismissal of the claim predicated upon an alleged violation of 12 NYCRR 23-9.5(c), which requires, in pertinent part, that excavating machines “be operated only by designated persons.” The evidence showed that the Bobcat operator was “selected and directed” by his employer to operate the Bobcat and therefore was a designated person within the meaning of the regulation (12 NYCRR 23-1.4[b][17]).
October 25, 2016
Appellate Division, First Department
Plaintiff allegedly was injured when he fell from a six-foot A-frame ladder as he was attempting to descend it. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law § 240(1).
The First Department reversed because plaintiff’s use of a six-foot ladder that required him to stand on the top step did not make him the sole proximate cause of his incident where the eight-foot ladder could not be opened in the space due to the presence of construction debris, relying on Noor v City of New York, 130 AD3d 536 (1st Dept 2015); Keenan v Simon Prop. Group, Inc., 106 AD3d 586 (1st Dept 2013).
The Court also rejected defendants’ recalcitrant worker argument because although the site safety manager testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop working as she lacked that authority.
PRACTICE POINT: As we discussed above the need to have sufficient room to utilize the safety device you will be suggesting should have been used in your sole proximate cause defense argument should be established as early as possible. Here the affidavit of the superintendent that there was sufficient room for the 8 foot ladder is contrary to his prior sworn testimony that there was not sufficient room for the 8 foot ladder. It is important to have your sole proximate cause argument ready, as much as you can, before starting depositions so that you do not wind up in this position. Please understand that I am not in any way criticizing counsel in this or any case, it is easy to look at these cases in hindsight, often your strategy needs to be completely changed mid-stream when a witness you have prepared for hours or days suddenly testifies completely opposite to what he said to you repeatedly over the past year or a new witness pops up an ruins you plans for a stunning victory. It has happened to all of us many times.
Valente v Lend Lease (US) Constr. LMB, Inc.
October 25, 2016
Appellate Division, First Department
Plaintiff allegedly was injured when he slipped and fell on grease on planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. The trial court granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim.
The First Department held that plaintiff established prima facie that his incident was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation different” and therefore is covered under the statute.
The Court rejected defendants’ sole proximate cause argument that plaintiff chose to use the planks instead of using a ramp that he knew was available or constructing a proper ramp from material that was readily available because there was evidence in the record that the ramp was not long enough to reach the scaffold and that plaintiff did not have time to build a ramp.
PRACTICE POINT: Plaintiff, slips while walking down a ramp due to grease on the ramp. We have a height differential of 5 feet, a safety device to assist the plaintiff in getting from one height to the next, and a defect in the safety device causing the plaintiff to slip and fall. What bothers me here is that it does not, from the decision, appear that the plaintiff actually fell from the ramp but it is rather described as a slip and fall. That to me means that the plaintiff slipped and fell, but remained on the ramp. If that is the case then I would disagree with the decision. If a plaintiff slips and falls on a scaffold due to grease, but lands on the same level it is not any different than if the same exact thing happened on level ground. Here there is not anything to my eye which suggests that the fall was in any way caused by the elevation differential or that the injury was caused by the effect of gravity, other than falling to the level he was walking at.
Smith v Extell W. 45th St. LLC
October 27, 2016
Appellate Division, First Department
Plaintiff allegedly was injured while riding in one of the building’s elevators. The trial court granted defendant Kone’s motion to dismiss the alleged violations of Labor Law §§ 240(1) and 241(6) predicated upon an alleged violations of Industrial Code regulations § 23-1.7.
The First Department affirmed dismissal of the Labor Law § 240(1) claim because the passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated under the statute, citing Kleinberg v City of New York, 61 AD3d 436 (1st Dept 2009); DiPilato v H. Park Cent. Hotel, L.L.C., 17 AD3d 191, 192 (1st Dept 2005).
PRACTICE POINT: Seems like a no brainer here, the plaintiff was riding in a passenger elevator and wanted the protections of the labor law, not today says the First. They are not expanding the labor law to include a passenger elevator, makes sense, it is not a safety device, period.
The court, however, reversed the trial court’s dismissal of plaintiff's Labor Law § 241(6) claim to the extent the claim was predicated on violations of Industrial Code (12 NYCRR) § 23-1.7(e). It found that while there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff’s complaint, as supplemented by his affidavit in opposition to defendant’s motion, sufficiently alleged that debris was one of the causes of his fall.
October 19, 2016
Appellate Division, Second Department
Plaintiff allegedly was injured while working at defendant’s property when an unsecured forty-five pound concrete block struck his foot after it fell off a scaffold located approximately five feet five inches above the ground.
The trial court granted plaintiff’s motion pursuant to CPLR § 3025(c) for leave to amend the complaint and granted plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
A party may amend its pleadings at any time by permission of the court, and leave should be freely given, provided the amendment is not palpably insufficient, does not prejudice the opposing party, and is not patently devoid of merit.
Here, the Second Department held the trial court providently exercised its discretion in granting plaintiff’s motion, which corrected a typographical error in the complaint regarding the date of the accident, did not result in any prejudice or surprise to defendants and was not palpably insufficient or patently devoid of merit.
The Second Department also affirmed the decision to award plaintiff summary judgment on his Labor Law §§ 240(1) claim because plaintiff demonstrated at the time of his incident, he was struck by an object and there were no pulleys, hoists, or other safety devices in place to prevent such falling hazard accidents.
PRACTICE POINT: A concrete block falls 5 feet and lands on the plaintiff’s foot. Not much else to say. A falling object need not be in the process of being hoisted any longer and it simply needs to have been secured to prevent it from falling and causing injury.
The court also affirmed the trial court’s grant of summary judgment on the Labor Law § 241(6) claim finding that plaintiff demonstrated, prime facie, inter alia, that there were violations of 12 NYCRR 23-1.7 ("Protection from general hazards” including “falling hazards”), and that such violations were a proximate cause of his injuries.
October 26, 2016
Appellate Division, Second Department
Plaintiff, a carpenter, was allegedly injured when he fell into an uncovered drainage pit in the floor of a vacant house undergoing renovation. The house was owned by the Kayla Trust, for which Alicia Brzyska is the sole trustee.
The trial court granted defendant’s motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
The Second Department held that defendant’s evidence demonstrated the existence of triable issues of fact as to the Labor Law §§ 240(1) and 241(6) claims because it was unclear if the work was being performed for “residential purposes” within the meaning of the homeowner’s exemption. In light of defendant’s failure to meet her initial burden, the Court held her motion should have been denied without regard to the sufficiency of the evidence submitted in opposition.
PRACTICE POINT: The issue was purely if the work was being done for residential of commercial purposes. Here the court found a question of fact in that regard. The burden is always on the moving party, thus the plaintiff in his motion for Summary Judgment must establish that the work was for commercial purposes and in the defendant’s motion for Summary Judgment he must establish that the work was done for residential purposes. Here neither was able to establish beyond a question of fact that the work was either commercial or residential in nature.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed and denied the defendants motion as to Labor Law § 200 and common-law negligence as well. The evidence submitted by the defendant demonstrated the existence of triable issues of fact with respect to the issue of how long the dangerous condition existed, and thus, whether the defendant had constructive notice of the defect. In light of the defendant's failure to meet her initial burden, her motion should have been denied without regard to the sufficiency of the evidence submitted in opposition.
Wright v Ellsworth Partners, LLC
October 20, 2016
Appellate Division, Third Department
Plaintiff, an employee of third-party defendant JAG, sustained a traumatic brain injury and other injuries at a construction site in the Town of Maltra. JAG was hired as the general contractor to perform concrete and masonry work. JAG’s supervisor instructed plaintiff to go to the fourth floor of a building to assist other JAG employees in cleaning up the site. While plaintiff was assisting in stacking scaffold, he was struck by a row of scaffold leaned against a wall.
The trial court granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 240(1), 200 and common-law negligence claims.
The Third Department held that uncontroverted testimony established the existence of an elevation height differential but that critically absent from the record is any indication as to plaintiff’s height or any other evidence shedding light on the height differential between plaintiff and the stacked frames at the time they fell on plaintiff. As a result, the Court found summary judgment inappropriate as there are unresolved factual questions.
PRACTICE POINT: When the falling object rests at the same level as the plaintiff the issue becomes if it is taller than the plaintiff and thus creating an elevation differential and if that elevation differential is the cause of the actual injury. The court explained this very well and I remind you that all you need do is click on the name of the case in the newsletter and that hyperlink will take you to the actual official reporter decision.
Labor Law § 200 and Common-Law Negligence (VCP)
The Third Department affirmed the dismissal of the Labor Law § 200 and common-law negligence claims against the defendants. Here, although there was testimony that a representative of AP Construction would walk around the job site to assess the progress of the work, the record confirms that neither Ellsworth nor AP Construction exercised any direct control over JAG's employees or the manner in which their work was performed.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.7(h) – Protection in Construction, Demolition and Excavation Operations; Protection from general hazards; Corrosive substances. |
§ 23-1.7(h), requires all corrosive substances and chemicals to be stored and used so as to not to endanger any person and the employer shall provide protective equipment for the use of corrosive substances and chemicals, and is sufficiently specific. |
Welsh v Cranesville Block Co., Inc., 258 AD2d 759, 685 NYS2d 825 (3d Dept 1999); Flores v Infrastructure Repair Service, LLC, 115 AD3d 543, 982 NYS2d 103 (1st Dept 2014).
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In Welsh, court found a genuine issue of material fact as to whether ∆ breached nondelegable duty owed to P by employer's failure to provide adequate boots to protect him from corrosive effects of concrete he was required to kneel in while performing his work on mausoleum precluded summary judgment.
Flores held a hot rubberized asphalt substance was not a corrosive substance or chemical requiring protective equipment under reg., even if a worker like π was injured while carrying the substance. |
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Labor Law Pointers
Editor
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
[email protected] [email protected]
Dan D. Kohane Cassandra A. Kazukenus
[email protected] [email protected]
Michael F. Perley Jennifer A. Ehman
[email protected] [email protected]
V. Christopher Potenza Marc A. Schulz
[email protected] [email protected]
Hurwitz & Fine, P.C.
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Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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