Labor Law Pointers
Volume VI, No. 11
Wednesday, September 6, 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. Take a look at these situations and we will do a quick Labor Law review.
In the first picture is it a labor law case when she falls?
Let’s start with the plaintiff, is she being paid to wash that window, if not she is not a valid plaintiff as she is not a person so employed. Is the window she is washing a commercial window or residential, if residential not a labor law case, if commercial yes. What safety device is she using, none, a person is not, other than under very specific conditions, a safety device.
OK, the next situation awaits.
Excellent use of counterbalance, but again a person is not a safety device so when he falls there is not an appropriate safety device likely within a hundred miles of this one. Notice that the chair supporting the boards he is standing on is itself supported by boards sticking out off the end of the balcony, seemingly with his assistant standing on them. Unfortunately stupidity is not a valid defense.
Here we have a worker, in a safety vest, with a harness and lanyard on a ladder, what could go wrong. The fact that the ladder is only kept from falling into the abyss because his co-worker is again the counterbalance is beside the point. How safe do you think it is that the lanyard is attached to the ladder, kind of like tying the anchor to your foot, and he is not wearing a hard hat. Big time winner in the plaintiff sweepstakes.
How about this one where the plaintiff clearly knew what he was doing and kept doing it anyway, do we have a defense?
Not many cases this month, the summer doldrums have been upon the courts, but it is sure to pick up in the next month.
As my kids return to school I am reminded to offer training to any and all that may want some. We can come and do it in person or via a webinar but the in person is better as there is always an opportunity to discuss actual cases and devise, as a group, the best course of action. We have prepared a seminar on identifying and sizing opportunities for early resolution, often the best course of action along with our many other labor law and risk transfer training. If you are interested just let me know and we would be happy to assist.
Just a reminder that our format is that anything you see in blue is a hyperlink, just click on it and it will take you to the actual case or statute. If you click on or initials it will open an email to allow you reach out to us via email easily.
By way of a public service announcement a friend of the firm, Betsy McLaughlin at RLI is looking for a Director – Claims Counsel for NYC but she mentioned that the location could be in Syracuse or Glaston, CT also. Here is a link to the posting if you know anyone who may be interested. Director - Claim Counsel
Enjoy the rest of summer and as always feel free to reach out to us with any questions or situations you may have.
Until next month,
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.
August 2, 2017
Appellate Division, Second Department
Plaintiff was standing on a scaffold, and as he walked along the scaffold, one of the wheels of the scaffold went into an opening in the floor where tiles had been removed, and he fell off the scaffold. At the same time that plaintiff was working on the scaffold, the electrical subcontractor, Forest, was working inside the raised floor, requiring the removal of certain floor tiles.
The trial court denied plaintiff’s cross-motion for summary judgment on his Labor Law § 240(1) claim, and granted defendants third-party plaintiffs’ summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims. The trial court also denied defendants/ third-party plaintiffs’ motion for summary judgment on their third-party cause of action against Forest Electric Corp. for contractual indemnification.
The Second Department held plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was engaged in work within the ambit of the statute and that his injuries were proximately caused by the absence or inadequacy of a safety device of the kind enumerated in the statute as he demonstrated that he complained to his foreman that the scaffold was “wobbly” on one side, but the foreman told him to use the scaffold anyway, he was directed to work on the scaffold without assistance in an area where the raised floor had missing tiles, and he fell from the scaffold because it either collapsed or tilted.
However, the Second Department affirmed the trial court’s determination that, in opposition to plaintiff's prima facie showing, defendants raised a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his injury because he allegedly was using the scaffold in an unsafe and prohibited manner immediately prior to the accident.
PRACTICE POINT: Here we go again; lets discuss the defense of sole proximate cause. To start you need to remember that this is different than proving that the case is not a labor law case. A sole proximate cause defense is not the same as proving that the case is not a labor law case, but rather proving that the plaintiff was the sole proximate cause of his injury. To do that there are five necessary elements which must be proven.
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A safety device which is appropriate to protect the plaintiff from the elevation related risk.
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That safety device must be available.
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The plaintiff must have been instructed to use the safety device or have known he was expected to use the appropriate safety device.
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The plaintiff must either fail to use the safety device or must misuse it.
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The failure to use the safety device must be for no good reason.
Never underestimate the importance of an expert to establish the appropriateness of the safety device.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, holding that the Supreme Court erred in determining that the defendants were entitled to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against Plaza. Here, the defendants failed to establish, prima facie, that Plaza did not have the authority to exercise supervision and control over the subject work. The defendants' submissions demonstrated that Plaza, as the construction manager, had a project superintendent at the work site on a daily basis who was responsible for job coordination and safety supervision. Plaza had the authority to stop work if a particular activity or condition was unsafe, and to regulate which workers and equipment were allowed in particular areas of the work site. Moreover, Plaza's project superintendent held weekly meetings with every subcontractor. Although the superintendent testified at his deposition that he gave directions to the subcontractors' supervisors, rather than to the workers themselves, he could tell a supervisor to immediately relay a safety-related instruction to a worker at any given time. Under these circumstances, the defendants' submissions failed to eliminate all triable issues of fact as to whether Plaza was acting as the general contractor and had the authority to supervise and control the manner in which the plaintiff performed his work.
Indemnity Issues in Labor Law (SEP)
With respect to the motion by Plaza and UBS for contractual indemnity the Court affirmed the trial court’s decision dening the defendants' motion for summary judgment on their third-party cause of action against Forest for contractual indemnification because they failed to eliminate all triable issues of fact as to whether the accident arose out of or was connected with the performance of Forest's work, pursuant to the terms of the subject indemnification provision.
August 2, 2017
Appellate Division, Second Department
Plaintiff allegedly sustained injuries when another worker, who had been holding the ladder on which plaintiff was standing, let go of the ladder and it slipped, causing plaintiff to fall. Defendant Joel Mendlovits hired plaintiff's employer, nonparty All Care, to remove siding and apply stucco on the rear of the two-family home owned by his wife, defendant Malka E. Mendlovits.
The trial court denied the Mendlovitses motion for summary judgment dismissing the complaint and any cross claims on the grounds that they were entitled to the benefit of the homeowner's exemption of Labor Law §§ 240 and 241, and denied plaintiff’s cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
Labor Law §§ 240(1) and 241 specifically exempt from liability thereunder “owners of one and two-family dwellings who contract for but do not direct or control the work.” A defendant seeking the protection of the exemption must demonstrate (1) that the work was conducted at the defendant's one-family or two-family residence, and (2) the defendant did not direct or control the work. “The phrase direct or control' as used in those statutes is construed strictly and refers to the situation where the owner supervises the method and manner of the work”.
Here, the Mendlovitses established Malka's entitlement to the protection of the homeowner's exemption by submitting evidence that she owned the two-family residence on which the work was being performed and that she did not direct or control the work being done. While the complaint explicitly alleged that she owned the premises, Plaintiff failed to raise a triable issue of fact on the issue of control. Joel did not own the residence, and therefore, was not entitled to the homeowner's exemption. However, he demonstrated that liability could not be imposed upon him as a contractor or agent within the meaning of Labor Law because he established that he did not possess the requisite authority to supervise or control the work being done to support liability under Labor Law. He merely hired All Care to perform stucco work on the home, but did not instruct All Care or plaintiff how or when to do the work and did not provide them with any tools, materials, or safety equipment. Plaintiff received instructions on when, where, and how to perform the work from All Care and never spoke to Joel, who supervised the progress of the work only to the extent of making sure it was getting done. The Court held such general supervision is insufficient to impose liability under Labor Law §§ 240(1) or 241(6).
PRACTICE POINT: Always start with the basics, is my client an appropriate defendant. A few quick questions, do you own the building or structure, do you have authority to supervise control of direct the work and are you a single or double home owner for residential purposes? Look at the easy things first. In addition to the above recall that a person is very seldom a safety device, if that is your best argument keep looking.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department also found the Mendlovitses were entitled to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action. Here, the Mendlovitses made a prima facie showing that Malka had no involvement in the plaintiff's work and that Joel had only general supervisory authority over the work and did not supervise or control the plaintiff's work, and plaintiff failed to raise a triable issue of fact in opposition.
August 16, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured when a portion of a plywood fence surrounding a construction site fell over and hit him on the head. Defendant was the principal of a welding and ironworks contracting company, and the plywood fence surrounding the construction site was erected by employees of his company. Although no work was being performed on the date of his accident, plaintiff alleges he and his employer were at the construction site that day to retrieve tools.
The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims, and the trial court granted defendant’s cross-motion to dismiss the complaint.
To prevail on a Labor Law § 240(1) claim in a falling object case, the plaintiff must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated in the statute. This requires a showing that at the time the object fell, it either was being hoisted or secured or required securing for the purposes of the undertaking.
Here, the Second Department held defendants made a prima facie showing of their entitlement to summary judgment dismissing the Labor Law § 240(1) claim by demonstrating that the plywood fence was not an object being hoisted or that required securing for the purpose of the undertaking, and that it did not fall because of the absence or inadequacy of an enumerated safety device and upheld the lower court ruling.
PRACTICE POINT: A plywood fence, just sitting there minding its own business suddenly fell on the plaintiff? Well even if that is how it happened a fence is not an item which needs to be secured, besides the guy wires would block ever sidewalk in the country.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, holding that the Supreme Court should have denied that branch of the defendants' motion for summary judgment dismissing the causes of action for common-law negligence and Labor Law § 200 without regard to the sufficiency of the opposition papers. Where, as here, a plaintiff alleges that he was injured at a work site as a result of a dangerous premises condition, a property owner's liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition. Here, the defendants failed to make a prima facie showing that they neither created the alleged dangerous premises condition nor had actual or constructive notice of its existence. The defendants' evidentiary submissions, which included the conflicting deposition testimony of the plaintiff and Sigifredo Gomez, failed to eliminate triable issues of fact as to whether the defendants created the alleged dangerous condition, or had actual or constructive notice of its existence.
Guminiak v VGFC Realty II, LLC
August 16, 2017
Appellate Division, Second Department
Plaintiff, an employee of nonparty A-Val Corp., allegedly was injured while performing work at 240 Washington Street in Mount Vernon, A-Val Corp.'s business location. The owner of the premises was the IDA. Defendant VGFC was the lessee of the premises, and nonparty A-Val was the sublessee of the premises. The trial court denied VGFC’s motion to dismiss plaintiff’s Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims, arguing that Workers' Compensation § 11 was plaintiff's exclusive remedy, as it was an alter ego of plaintiff's employer, and not an “owner” within the meaning of the Labor Law.
The Second Department held that although VGFC submitted evidence which established that it and A-Val were related entities, failed to demonstrate either that VGFC and A-Val, plaintiff's employer, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other and therefore failed to eliminate all triable issues of fact as to whether the exclusivity provisions of the Workers' Compensation Law barred the action against VGFC because it was an alter ego of plaintiff's employer. The Court also held VGFC failed to establish, prima facie, that it was not an owner or agent within the meaning of the Labor Law.
PRACTICE POINT: This is a common issue with many companies; they have different companies and the same ownership but are not the same entity, only related. To get the protection of section 11 there must be proof that the defendant was employed by or co-employee of the defendant.
August 16, 2017
Appellate Division, Second Department
Plaintiff, an employee of a joint venture hired by the MTA to carry out a subway extension project, allegedly fell from the top of a stack of blasting mats more than 10 feet high. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, and granted defendants’ cross-motion for summary judgment to dismiss the complaint.
The Second Department affirmed as the contract did not confer upon defendants the authority to control the methods used by the contractors, including plaintiff's employer, to complete their work. Defendants were authorized only to review and monitor safety programs and requirements and make recommendations, provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and stop work only in the event of an emergency. The parties' deposition testimony also demonstrated that the defendants did not have control or a supervisory role over the plaintiff's day-to-day work.
The Court held defendants therefore made a prima facie showing that they had no control or supervisory authority over plaintiff's work so as to enable them to prevent or correct any unsafe conditions. Plaintiff did not raise any triable fact with respect to the authority to control his work.
PRACTICE POINT: Always start with the contracts to see if they confer the authority on the defendant to supervise the means and methods of the injury producing work. Then the depositions are used to determine if the defendant exercised any such supervision or control. Simple authority to schedule or inspect is not sufficient.
Melendez v 778 Park Ave. Bldg. Corp.
August 16, 2017
Appellate Division, Second Department
Plaintiff and his coworkers were erecting a scaffold in the rear of a building owned by the defendant 778 Park. Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall and sustain injuries. Defendant AMG, was the general contractor for the construction project on which plaintiff was working. The trial court granted defendants AM&G Waterproofing’s and AMG’s motions for summary judgment dismissing plaintiff’s Labor Law §§ 240(1), 241(6), 200, and common-law negligence claims.
The Second Department affirmed as defendants demonstrated that plaintiff was the sole proximate cause of the accident that caused his alleged injuries, since he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam, rather than standing upon the secured planking available to him, which he had used in the minutes leading up to the accident. In opposition, the plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: I love the Second Department. Logic applied to the facts. The plaintiff makes a bad decision, steps where he knows he should not and falls, if that is not his sole proximate cause what is. But what would have been the result in the fourth or the first, inquiring minds want to know. If you have an opinion as to what the other departments would have ruled please let me know, just click on this hyperlink. (DRA)
To sustain a claim under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the facts of the case. Here, defendants established that either the regulations were not a proximate cause of plaintiff’s injuries or that the regulations did not apply to the facts of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, holding that the Supreme Court also properly determined that AMG was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. Here, the plaintiff's injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed. To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work. A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed. Here, the defendants' submissions demonstrated, prima facie, that AMG did not have the authority to control, direct, or supervise the method or manner in which the work was performed. In opposition, the plaintiff failed to raise a triable issue of fact.
August 16, 2017
Appellate Division, Second Department
Plaintiff was employed by MCJ, a subcontractor on a construction project at the defendant, Long Island University. Plaintiff and a coworker were installing sheetrock to create a wall on the first floor of the project. Plaintiff was positioned on the basement level of the building, but was required to install sheetrock in an area located on the first floor through a large opening between the two floors so he stacked two Baker scaffolds on top of each other and further placed an A-frame ladder, in the closed position, atop the two scaffolds.
While plaintiff was applying pressure to screw in a piece of sheetrock, the scaffold fell backwards, causing him to fall. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.
The Second Department affirmed, finding that although plaintiff met his initial burden by establishing, through his deposition testimony, that the ladder and scaffold he used to perform sheetrock work at an elevation failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries, the Court held defendant raised a triable issue of fact as to whether plaintiff's actions were the sole proximate cause of his injuries. Specifically, defendant raised a triable issue of fact as to whether pipe scaffolds, which were available to plaintiff, constituted adequate protection for the work he was performing and, if so, whether plaintiff, based on his training, prior practice, and common sense, knew or should have known to use pipe scaffolds instead of Baker scaffolds.
The Court also held defendant raised a triable issue of fact as to whether the scaffolds alone were adequate for the job, thereby negating any need for plaintiff to place a closed ladder on top of the scaffolds. Therefore, defendant submitted evidence that would permit a jury to find that “the plaintiff had adequate safety devices available; that he knew both that they were available and that 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”, the classic sole proximate cause scenario. The Appellate Division affirmed the lower court’s order denying plaintiff’s motion.
PRACTICE POINT: Once again the sole proximate cause defense comes onto play. Here there were two alternative and arguably appropriate safety devices available to the plaintiff. There is no question in my mind that the second department is the most liberal, and logical, in its application of the sole proximate cause defense. Just look at the language they used here,” whether plaintiff, based on his training, prior practice, and common sense, knew or should have known”. It is not just what he was instructed or trained to do, it is also his prior practice an common sense, but the big jump, for me, the where they discuss what he knew or SHOULD HAVE KNOWN. I think this is a very big step by the second. Ironically, that exact same language has been used a total of seven times (computers are great) and the other six times by the fourth. In those six cases the fourth never granted Summary Judgment to the defendant.
The Second Department held that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on his Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation 23-1.21(b)(4(ii), which provides that “Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings”.
August 16, 2017
Appellate Division, Second Department
Defendant The Laurel Group was hired to remove and replace a residential driveway and subcontracted the job to M & A Asphalt, Inc., which employed plaintiff as a laborer. During the removal of the driveway, plaintiff was struck by a crawler-mounted excavator that his supervisor was operating. The trial court denied defendant’s motion for summary judgment dismissing the Labor Law § 241(6) claim predicated on violations of Industrial Code regulations (12 NYCRR) 23-1.5(c)(3), 4.2(k), and 9.2(a).
The Second Department reversed as to regulations 1.5(c)(3) and 9.2(a) as both are general provisions requiring the repair of safety defects and therefore do not apply in this case. Plaintiff’s expert opinion that a backup alarm was standard equipment on a crawler-mounted excavator was insufficient to raise a triable issue of fact in light of 9.5(g)’s language expressly exempting crawler-mounted excavators from the requirement of having a backup alarm. Thus, the Court held the trial court should have dismissed the Labor Law § 241(6) claim predicated upon 1.5(c)(3) and 9.2(a).
The Court agreed with the trial court regarding 4.2(k), which provides that “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment”. Not only is regulation 4.2(k) sufficiently specific, but defendant failed to establish that it did not apply as defendant presented conflicting evidence whether plaintiff was “suffered or permitted to work” near the excavator on the day of his accident, which the Court held was insufficient to demonstrate the absence of triable issues of fact such that defendant’s motion was correctly denied.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
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12 NYCRR § 23-1.8(d) – Protection in Construction, Demolition and Excavation Operations; Personal protective equipment; Cleanliness of personal protective equipment. |
§ 23-1.8(d)(1) requires that “[a]ll personal protective equipment shall be kept clean and in good repair” and that “[b]efore being transferred from one employee to another, safety hats, foul weather hats, boots and hat and boot liners shall be washed or dry cleaned”. Regulation 1.8(d)(2) provides that “[g]ogles, glasses and welder’s shields shall be disinfected before being transferred from one employee to another”. |
There are no cases determining whether or not regulations 1.8(d)(1) and/or (2) are sufficiently specific to support a Labor Law § 241(6) claim. |
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providing legal services throughout the State of New York
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
Howard B. Altman
Associate Editor
Brian F. Mark
Labor Law Team
David R. Adams, Team Leader Steven E. Peiper
[email protected] [email protected]
Dan D. Kohane Jennifer A. Ehman
[email protected] [email protected]
Marc A. Schulz Jennifer J. Phillips
[email protected] [email protected]
Michael F. Perley Eric D. Andrew
[email protected] [email protected]
V. Christopher Potenza Howard D. Altman
[email protected] [email protected]
Brian F. Mark
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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