Labor Law Pointers
Volume VI, No. 10
Wednesday, August 2, 2017
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
Do you have a situation, we love situations. Every time the phone rings I hope for a situation, complex, twisted, with issues of applicability, sole proximate cause, risk transfer, conflicting testimony and others that can’t even be anticipated. That is what makes my day. Please, if you have a situation, feel free to call and provide us with a little brain exercise.
Summer is really here now, hot days and warm nights, just perfect for sitting on the porch and writing as the moon makes its appearance. I hope that you are all making the most of this weather.
The courts are not issuing many decisions right now during the summer recess, but don’t worry, it will pick back up over the next few months, it always does. As the summer winds down over the next few months it is a perfect independent medical examination for a little in house training. We are available to put on a seminar for your team on any topic labor law or risk transfer related. I have recently done one on investigation of a labor law case which worked out very well. We even had a check list too follow. If you are interested in any training please feel free to reach out to us at any time.
As you may be aware Jody Briandi has added a new newsletter to the Hurwitz & Fine stable with her Premises Pointers. This newsletter covers current cases, trends and developments involving premises liability and general liability. If you are interested in receiving this excellent publication just email Jody or myself and we will see that you are added to the distribution list. If you say that “David set me” I will make certain that the usual cost of free is reduced to absolutely nothing for you as my special gift.
If you do not receive Dan Kohane’s Coverage Pointers you may well want to subscribe to that as well. Just drop Dan a line and he will happily add you to the distribution list.
That is it for this month, have a great August and we will be back the first Wednesday in September.
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.
July 18, 2017
Appellate Division, First Department
Plaintiffs, employees of Brand, were dismantling a scaffold loading material onto the boom truck. Brand workers raised the boom about 45-60 degrees to make it easier to lower the material onto the truck. Although there was sufficient roof to lower the boom after the truck was loaded, Brand workers forgot to lower the boom. After the truck took off, the raised boom struck an overhead road sign, causing the truck to swing into the air and gantry to fall. Plaintiffs were thrown from the truck. Alpha was the general contractor who leased the boom truck from Quad Rentals, LLC; an affiliate of Alpha. GPI was the construction manager for the project.
The operator of the boom truck on the date of the accident testified he went back and forth between Alpha's and Brand's employ, and admitted receiving no instruction from any source concerning either the operation of the boom or the boom truck. He never operated “that type of truck” prior to the incident and was not licensed to drive a commercial vehicle, nor licensed or certified to operate a boom truck or a crane.
Plaintiff testified the Alpha foremen were present during the hour or so it took to load materials onto the boom truck, and they repeatedly screamed at the workers to work faster. They ordered plaintiffs and the other Brand workers to board the truck and to drive. Plaintiff boarded the truck because he was told to by the Alpha foreman and Fernando, the GPI safety officer. He testified that Fernando directed traffic so that the driver could pull the boom truck out of the closed lane.
The trial court granted defendants’ motions for summary judgment dismissing the complaint, and denied plaintiffs’ motion for partial summary judgment on their Labor Law § 241(6) claim. In dismissing the Labor Law § 240(1) claim, the court held the accident was outside the scope of the statute because it occurred away from the work site and reasoned that even if the Labor Law statutes were applicable, such violations had not proximately caused the incident with respect to any defendant. The court dismissed the Labor Law § 200/common-law negligence claim against Alpha, reasoning that Alpha had not supervised or controlled plaintiffs’ work and did not have notice of any dangerous condition that caused plaintiffs’ alleged injuries.
The First Department affirmed the trial court’s decision to dismiss the § 240(1) claim because plaintiffs were not faced with the type of elevation-related hazard contemplated by the statute. The court held plaintiffs’ fall was not caused by an elevation-related risk but by the motion of the truck after the boom struck the sign, citing Dilluvio v City of New York, 264 AD2d 115, 119 (1st Dept 2000). The court further held the gantry was “not a material being hoisted or a load that required securing” within the meaning of the statute, citing Narducci v Manhasset Bay Assoc.
PRACTICE POINT: This result is logical and appropriate. Where the injury is not caused by the application of gravity, then the labor law simply does not apply. 240(1) has been broadened in the past 7 years, most notably through Runner, and the application of the defense of sole proximate cause has also been more broadly allowed, but at its very core 240(1) requires gravity to act directly on the plaintiff or the falling object to establish a prima facia case.
The First Department held that Industrial Code regulations (12 NYCRR) §§ 23-9.7(e) and 1.29(a) did not apply but found an issue of fact whether defendants violated 8.2(d)(3), which deals with “mobile crane travel” and requires that “a mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab”.
Although defendants argued there was no evidence the boom bounced back over the cab, the court noted the boom was high enough to strike a gantry sign and the court noted 8.2(d)(3) is violated when a mobile crane has “the boom so high that it may bounce back over the cab”. The majority rejected the dissent’s argument that the regulation was not implicated because plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. As to GPI, the court also found issues of fact whether they functioned as a statutory agent with control over the injury-producing work in light of the conflict between the contract and testimony about the operation of the work site.
Justice Tom’s dissent would dismiss the § 241(6) claim, finding 8.2(d)(3) inapplicable to the boom truck as it clearly is not a mobile crane, and because plaintiffs’ injuries were not caused by the hoist bouncing over the cab of the truck but rather by the boom hitting the road sign.
This is clearly a means and methods case and thus requires supervision, direction of control of the injury producing work to establish a cause of action for section 200 and common law negligence. Here the defendants had only general supervisory authority over plaintiffs' work, which is insufficient to establish liability under Labor Law § 200 or common-law principles.
July 25, 2017
Appellate Division, First Department
Plaintiff fell thirty feet from scaffolding on the Freedom Tower at 1 World Trade Center, when he allegedly stepped on a pipe brace the suddenly gave way. Although he was wearing a harness and double lanyard, the trial court in a prior decision found issues of fact whether the scaffold itself provided adequate anchoring points at which to tie off, and whether plaintiff could have used his double lanyard to remain tied off at all times.
The trial court granted defendant’s motion for renewal and reargument, and subsequently denied plaintiff’s cross-motion for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims as well as adhered to its prior determination denying defendant’s motion for summary judgment dismissing those claims.
The First Department noted that when “there are questions of fact as to whether the [structure] provided adequate protection”, summary judgment by neither party is warranted here because there are issues of fact as to whether plaintiff was provided with “proper fall protection, namely, an appropriate place to … attach his harness”. As a result, the court also found issues of fact whether plaintiff was the sole proximate cause of his accident because he unhooked his lanyard.
PRACTICE POINT: It is critical here to address the issues in order. First issue is whether or not the plaintiff made a prima facie case, which needs to be done before the sole proximate cause defense is even addressed. Here there was a question of fact as to whether or not the structure the plaintiff was working on provided him with an appropriate opportunity to attach one of his two lanyards. If the structure did not provide such an opportunity then the safety devise, the combination structure and lanyards, was not adequate, and Summary Judgment would be awarded to the plaintiff. If there were opportunities to attach the lanyards then the issue of sole proximate cause would be addressed.
July 5, 2017
Appellate Division, Second Department
Plaintiff testified he was standing on a rung of an inadequately secured ladder when the ladder fell out from under him and he fell. The trial court previously granted plaintiff summary judgment on his Labor Law § 240(1) claim, granted defendant’s motion for leave to renew and reargue his opposition to plaintiff’s motion, and then adhered to its prior determination.
The Second Department held plaintiff made a prima facie showing of entitlement to summary judgment but held defendant raised a triable issue of fact by presenting evidence that plaintiff’s date of alleged injury did not coincide with the dates that his company worked on defendant’s premises. Thus, the court held defendant was able to raise a question of fact as to whether plaintiff’s injuries were actually caused by a fall from a ladder on defendant’s premises.
Accordingly, upon renewal and reargument, the trial court should have vacated the prior determination granting plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and should have denied the motion.
PRACTICE POINT: The plaintiff’s case, based on his testimony that he fell while working on the site on a specific date, does create a prima facie case. The evidence that his company was not even working at that site on the date the plaintiff claims to have been injured would obviously contradict his testimony. You were likely wondering why, if the plaintiff was not working there that day why is this merely a question of fact and not dismissal. From reviewing the case it appears that the defendant did not cross move to have the case dismissed. That may well be because the plaintiff has an explanation as to why he was working there on a date tht it appears his company was not working, the cross motion may have been precluded by the passage of time or any number of other reasons a cross motion was not pursued.
July 19, 2017
Appellate Division, Second Department
Plaintiff allegedly sustained injuries when he fell from a ladder while working on a light fixture at MECPS. ECPS is a NYC school and the premises were owned by DASNY. Plaintiff retained defendants to represent him in his action predicated on violations of Labor Law §§ 240(1), 241(6), 200 and common-law negligence. Defendants did not pursue an action against DASNY.
Plaintiff thereafter commenced this action alleging malpractice based on defendants' failure to timely commence an action against DASNY and against the individually named defendants. The trial court denied plaintiff’s motion for summary judgment on his legal malpractice claim, and denied defendants’ cross-motion to dismiss the complaint on the grounds that plaintiff did not have a viable claim against DANSY.
“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages”. “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence”.
Here, the Second Department found that although defendants established prima facie that plaintiff would not prevailed on his Labor Law Labor Law §§ 241(6) and 200 claims, defendants failed to establish same as to the § 240(1) claim. The court held defendants failed to eliminate triable issues of fact whether plaintiff was engaged in “repair” work or routine maintenance in light of plaintiff’s testimony that he was in the midst of disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture when he fell from the ladder.
PRACTICE POINT: The difference between a repair (covered activity) and maintenance (a non-covered activity) is driven by case law. I always look for a task that is routinely or regularly done to prove it is maintenance. I also look for the history behind the task, just to see if it has been done on a regular basis before the date of the accident. If you have any questions about the difference and applicability of the labor law to the specific facts of your case, please feel free to reach out to us at any time.
July 13, 2017
Appellate Division, Third Department
The School District contracted with defendant to renovate the heating systems at three of its school buildings. Defendant subcontracted with plaintiff’s employer, TBS, to install temperature controls for the renovated heating systems. In preparation for TBS’s installation, Mitchell and another TBS employee delivered conduit pipes to one of the buildings.
When Mitchell carried the pipes into the building’s main mechanical room, her foot caught on two extension cords that were lying across the floor, causing her to trip and fall. The trial court denied defendant’s motion for partial summary judgment dismissing the Labor Law §§ 241(6), 200, and common-law negligence claims, and granted plaintiffs’ cross-motion for a finding that defendant was a contractor or agent of the owner and violated regulation 1.7(e)(2).
Although prime contractors are immune from liability pursuant to Labor Law § 241(6) where they lack contractual privity with the injured plaintiff’s employer and have “no authority to supervise or control the work being performed at the time of the injury”, the Third Department held the record establishes defendant was in contractual privity with TBS and that the owner delegated all mechanical work to defendant by hiring it as the sole mechanical contractor for the project, therefore demonstrating the owner’s intent to delegate supervisory control over TBS’s work to defendant as its statutory agent.
The Third Department also agreed with the trial court that there are issues of fact whether defendant violated Industrial Code regulation 1.7(e)(2), which provides, as relevant here, that the parts of the floor “where persons work or pass shall be kept free … from scattered tools and materials … insofar as may be consistent with the work being performed”.
Specifically, the court held defendants failed to establish that the extension cords did not constitute “scattered tools and materials”, and their expert engineer failed to raise an issue of fact on this issue as it set forth generalized and conclusory assertions and broadly surmised that because extension cords are used on construction sites every day they cannot be considered scattered tools and materials. Thus, defendant’s motion was properly denied by the trial court.
The first step in a 200 claim is to see if it is a means and methods case or a defect on property case. Here as the plaintiff tripped over extension cords left out on the floor it is a defect or dangerous condition case. Next we need to analyze if the defendant had control over the work leading to the injury and if the defendant had notice, actual or constructive, or if the defendant created the condition. There was, in this case, a question of fact as to the constructive notice to the defendant given the defendant’s safety officer being present and the question of their control over the room in which the plaintiff fell.
July 7, 2017
Appellate Division, Fourth Department
Plaintiff's decedent, a foreman on the job, was injured and ultimately died as a result of injuries sustained in a fall from either a ladder or a scaffold while placing plastic sheeting used to protect masonry work that had been completed at a lower level, for his employer, third-party defendant K.C., on a building owned by defendant/third-party plaintiff Camden School District (Camden). Defendant/third-party plaintiff Nole was the general contractor and defendant-third-party plaintiff Bovis was the construction manager.
The trial court granted that part of plaintiff’s motion seeking summary judgment on his Labor Law § 240(1) claim against Nole and the School District but denied it with respect to Bovis. The trial court also denied the cross-motion of K.C., Bovis, Camden and Nole seeking dismissal of the Labor Law § 240 (1) claim. The trial court also granted that portion of Nole’s motion seeking contractual indemnity from K.C. and Camden.
The Fourth Department held it was undisputed that the safety ladder used by decedent, which was supplied and placed by employees of K.C., did not tip, and the scaffolding did not collapse, tip, or shift. As decedent was the only witness to the accident, he was unable to provide any testimony or statement concerning how the accident happened.
The court noted the simple fact that plaintiff fell from a ladder [or a scaffold] does not automatically establish liability on the part of [defendants] and the court concluded that the trial court erred in determining that plaintiff met her initial burden on her motion by simply establishing that decedent fell from a height. The court further concluded plaintiff's submissions raised triable issues of fact as to how the accident happened, from where decedent fell—the ladder or the scaffold, and whether a violation of Labor Law § 240 (1) occurred.
As to Bovis and Camden, the court found Bovis established entitlement to a determination that it was not Camden’s agent as Bovis lacked the requisite control over the means or methods of the performance of the work by contractors or subcontractors, and it also had no control over safety precautions for the workers at the construction site.
PRACTICE POINT: Contrast this case with a case where the plaintiff is the only witness and claims that the ladder he was standing on shifted causing him to fall and there are no other witnesses. Here while there are no other witnesses, the plaintiff is not able to provide a version of the accident which supports a labor law claim so Summary Judgment may not be awarded to the plaintiff. It is in these cases that I always wonder how the plaintiff expects to win at trial. While the burden is on the moving party on a Summary Judgment motion and thus seemingly there is no way for a defendant to win in an un-witnessed accident (at last in state court), during the trial the burden of proof is on the plaintiff and without any ability to prove a violation it seems that the defendant should win on a directed verdict.
Indemnity Issues in Labor Law (SEP)
With respect Nole’s motion for contractual indemnity from K.C., the Court affirmed the trial court’s decision that the Nole/K.C. contract contained a viable indemnification clause that provided protection for both Camden and Nole. In addition, Nole established that neither it, nor Camden, were negligent as they did not exercise supervision, direction or control over the work being performed by decedent at the time of the incident.
Bovis, also, moved for summary judgment against Nole. The basis of the motion, apparently, was Nole’s contract with Camden. As part of that agreement, Nole agreed to indemnify the construction manager. There was no dispute that Bovis was the construction manager on this jobsite, and that Bovis was not actively negligent.
At the same time, Bovis also moved to dismiss Nole’s cross-claim for contractual indemnity. On the Record before the Court, it was apparent that no such contractual provision existed.
Finally, the Court also affirmed the trial court’s decision that Bovis and Camden presented a viable common law indemnity claim against Nole. Where, as here, there was no proof of active negligence, it followed that Nole had no common law indemnity obligations to any party. Nevertheless, where K.C. did have some active negligence, it followed that Nole was entitled to an award of common law indemnity.
12 NYCRR § 23-1.8(c) – Protection in Construction, Demolition and Excavation Operations; Personal protective equipment; Protective apparel; Protection from corrosive substances.
§ 23-1.8(c)(4) requires that every employee working with corrosive substances or chemicals be provided with appropriate protective clothing and eyewear.
Creamer v Amsterdam High School, 241 AD2d 589, 659 NYS2d 560 (3d Dept 1997);
Welsh v Cranesville Block Company Inc., 285 AD3d 759, 685 NYS2d 825 (3d Dept 1999);
Lee v Lewiston Const. Corp., 23 AD3d 1002, 803 NYS2d 831 (4th Dept 2005);
Flores v Infrastructure Repair Service, LLC, 115 AD3d 543, 982 NYS2d 103 (1st Dept 2014);
Neville v Chautauqua Lake Cent. School, 124 AD3d 1385, 1 NYS3d 691 (4th Dept 2015).
Creamer held that reg was sufficiently specific to support a Labor Law § 241(6) claim, and that heated asphalt is considered a “corrosive substance”.
Welsh found issue of fact whether ∆ failed to provide π adequate boots to protect him from corrosive effects of concrete that he was required to kneel in while performing his work.
Lee found issue of fact whether π’s duties, included stuffing insulation under existing roof, required to “use or handle” coal tar pitch & if so, whether ∆s failed to provide protective apparel & washing facilities where π’s lacerated hand allegedly became infected from contact with coal tar pitch.
Flores held reg inapplicable as
∆ provided expert proof that hot rubberized asphalt was not a corrosive substance or chemical that required protective equipment and apparel to handle, and π failed to rebut said evidence.
Neville held affidavit of π’s expert failed to raise issue of fact whether ∆ failed to comply with reg regarding his neck & face, which allegedly were splashed by hot tar while placing 100lb. keg of asphalt into kettle b/c expert stated in conclusory terms that apparel provided were not appropriate as face mask was not long enough to prevent hot tar from splashing underneath it & no fire-proof hood was provided.
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Labor Law Pointers
David R. Adams
V. Christopher Potenza
Steven E. Peiper
Marc A. Schulz
Eric D. Andrew
Howard B. Altman
Brian F. Mark
Labor Law Team
David R. Adams, Team Leader Steven E. Peiper
Dan D. Kohane Jennifer A. Ehman
Marc A. Schulz Jennifer J. Phillips
Michael F. Perley Eric D. Andrew
V. Christopher Potenza Howard D. Altman
Brian F. Mark
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