Labor Law Pointers
Volume VII, No. 2
Wednesday, December 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. Give us a call, send us an email, stop by and sit down and talk about it, make your situation our situation, we do so love to solve those tricky situations.
Busy month, 16 cases analyzed and summarized for your reading pleasure. Ok, I do understand that most people, at least those with lives, do not find reading about the inequities of New York State Labor Law to be pleasurable, but I sometimes like to pretend that I am not alone in this obsession with figuring out how to successfully cases with this Draconian law creating liability for my non-negligent clients.
This time of year we make the rounds doing training for all types of organizations on a very large variety of Labor Law and Risk Transfer topics from initial investigation post trial and appeal issues. If you have any need for training for your group just let us know and we will figure out a time and provide you whatever it is you may need.
As usual I have a few photos with which to provide some pointers on the evaluation of Labor law cases.
In the first picture a flying hockey puck from Steve Pieper’s rink hit a power line and entire neighborhood was plunged into darkness. The neighborhood dads quickly got together and created a human ladder to that the lightest of the group could climb up there and reconnect the line and get their TVs back on before the game started. Unfortunately, just as they were about to reconnect the line the bottom man heard the ice cream truck come around the corner and he bolted, creating quite a pile of swearing men on the ground at the base of the pole. The man at the very top landed directly on the number 3 man and broke his ankle. Who, if anyone, has a labor law case?
The answer you have all been waiting for is none of them. As they were not individuals who were “so employed” at the time of the accident, but rather volunteers, none of them are appropriate plaintiff and not the type of worker the law was promulgated to protect.
For the next picture assume that the plaintiff, or soon to be plaintiff, is being employed to remove the tree because it was interfering with a power line recently repaired by a rag tag collection of neighborhood dads. In addition the ladder was placed in its current location by his boss who told him not to worry, that this is how they always put up the ladder. When the is injured in the inevitable fall, does he have a labor law case against the property owner?
Fortunately for the property owner the plaintiff does not have a case. He is a person so employed, check, valid plaintiff. The property owner is a valid defendant. The plaintiff fell from a ladder and did not have an appropriate safety device so he is good there. The problem for him is that the statute only applies to work done on a “building or structure”. A structure is defined as something made of component parts, and a tree is not so constructed and thus is not a structure, so this is not a labor law case.
I simply have no words for this next one. I really tried. He is simply and idiot and no amount of massaging a fact pattern could get me to a point where I could create a valid question here, but I liked the picture too much to take it out.
Here the plaintiff was hired by the homeowner (payment was to be a 6 pack of beer) to help install a smoke detector in his very small 2 room bungalow house, and is screwing it into the beam. He could not find a ladder and thus asked the homeowner to let him stand on his shoulders and do the job. He told the homeowner where to stand, how to stand, how to extend his arms for balance and exactly what to do. Unfortunately, the homeowner sneezed and the plaintiff fell sustaining a back injury. Labor law case?
The plaintiff is a person so employed so he is a valid plaintiff, or the type the statute is designed to protect. He was drilling into the beam and thus making a significant physical change to a building or structure. He was working at a height and there was no safety device present to protect him from injury. The defendant was the home owner and thus a valid defendant, except that he is entitled to the exception for the owner of a one or two-family dwelling who contract for but do not control the work. Here the plaintiff told the owner exactly what he wanted him to do, not the other way around so it will not be a labor law case.
Hope that you enjoy the edition, and the holiday season. Best wishes from all of us here at H&F.
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.
November 2, 2017
Appellate Division, First Department
Plaintiff was injured when, while working as a plasterer on a school construction project, he hit his head on a tie-in that was securing a scaffold to the building. The trial court denied defendants summary judgment motion dismissing the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed, finding that dismissal of the Labor Law § 200 and common-law negligence claims was warranted as the record was devoid of evidence indicating that the existence or placement of the tie-in constituted a dangerous condition.
Nielson v Vornado Forest Plaza, L.L.C.
November 2, 2017
Appellate Division, First Department
Plaintiff, a laborer employed by nonparty TCB Builders, fell while descending a ladder after it started to rain. Prior to the fall, plaintiff was on the roof inspecting the inducer motors. Defendants/third-party plaintiffs PFNY leased the premise. The trial court denied subcontractor Defendant Pro Aire’s summary judgment motion dismissing the third-party contractual indemnification and breach of contract claims in this Labor Law § 200 and common-law negligence action because Pro Aire was not responsible for the maintenance of the ladder.
Indemnity Issues in Labor Law (SEP)
The owner/lessee of premises (PFNY) asserted a claim seeking contractual indemnification against third-party defendant Pro Aire. Pro Aire moved to dismiss the claim on the basis that it was not responsible for the maintenance of the ladder from which plaintiff fell.
In finding for Pro Aire, the Court noted that it found no evidence of independent negligence on Pro Aire. As such, the only liability that PFNY could face would be its own attributable negligence. Moreover, to the extent Pro Aire may have been negligent; the Court noted that the indemnity clause upon which the claim was premised is in violation of GOL 5-322.1 which prohibits a party from being indemnified for its own negligence.
Peiper’s Point – Not to be lost in this decision is the fact that where only a Common Law Negligence/Labor Law 200 claim exists, there is no basis for an indemnity claim against a third-party. Why, you ask? Because for liability to attach to the owner/lessee in this case, a finding of negligence would attach. Accordingly, any claim for exposure they might have would have been directly tied to its/their own negligence. As noted by the Court, since a party cannot be indemnified for its own negligence, there is no basis for an indemnity claim.
November 21, 2017
Appellate Division, First Department
Plaintiff fell from a ladder. His medical records contained a description of the accident allegedly inconsistent with plaintiff’s deposition testimony. The trial court granted plaintiff summary judgment on his Labor Law § 240(1) claim.
The First Department unanimously agreed with the trial court that statements in medical records, including “acts or occurrences leading to the patient's hospitalization — such as a narration of the accident causing the injury - not germane to diagnosis or treatment” constitute inadmissible hearsay. Plaintiff’s statements about whether the subject ladder was wooden or metal or whether he fell because it slipped or because the rung cracked could not be used to introduce an issue of fact by defendants.
The Court also held the party admission exception to the hearsay rule does not apply because while hearsay may be used to defeat summary judgment so long as it is not the only evidence relied on, the medical records are insufficient to defeat summary judgment here because it was the only evidence relied on by defendants on opposition to plaintiff’s motion.
PRACTICE POINT: So the issue here is how to get the statements of the plaintiff into evidence to present a question of fact to the court and avoid summary judgment. Here, again, we preach the early investigation advantage. Speak to co-workers and get statements, get affidavits from the providers to confirm what the medical records say, all easier to do in the days after the accident and not years later. Having evidence that is helpful is nothing but frustrating if you can’t get it to the court in admissible form.
November 21, 2017
Appellate Division, First Department
Plaintiff, a foreman, allegedly was injured after falling from a ladder. The trial court denied plaintiff’s motion to reargue his prior motion for summary judgment on his Labor Law § 240(1) claim as untimely since it was made more than one year after entry of the prior order, instead of within thirty days and plaintiff had not demonstrated that the court overlooked or misapprehended any matters of fact or law in determining the prior motion.
The First Department unanimously agreed with the trial court, and held plaintiff failed to support his motion to renew with “new facts not offered on the prior motion” and “reasonable justification” for his failure to present those facts of the prior motion”, citing CPLR § 2221(e).
PRACTICE POINT: If you are not happy with the result of a motion, appeal that decision even if you are going to make a motion to renew or reargue. Remember that a motion to reargue means you are claiming that the court misapplied the law to the facts presented in admissible form and that a motion to renew is a claim that there are new fact or law that was not available to the court or counsel when the prior motion was argued.
November 28, 2017
Appellate Division, First Department
Plaintiff, an employee of nonparty general contractor Benchmark, was injured while working on property owned by One City. Benchmark was retained by nonparty Google, One City's parent company and tenant. Plaintiff was responsible for cleaning and maintaining the work site, and allegedly was injured when he slipped on a loose piece of sprinkler pipe lying on the floor.
The trial court denied One City’s summary judgment motion to dismiss the Labor Law §§ 241(6), 200 and common-law negligence claims, and on their third-party claims for contractual and common-law indemnification and breach of contract against Island Fire. The trial court also granted Island Fire’s motion to dismiss the third-party claims against it.
Plaintiff relied upon Industrial Code (12 NYCRR) regulations §§ 23-1.7(e)(1) and 2.1(a)(1), dealing with tripping hazards in, among other places, a passageway, walkway, or stairway. Here, the First Department found a material issue of fact whether plaintiff fell in a “passageway” or merely in an open area in light of testimony from plaintiff, his supervisor, and the carpentry foreman that stud walls had been erected at the time of the event. Plaintiff further testified the area in which he fell was an eight-foot wide “corridor”. However, a superintendent testified he saw plaintiff in “an open space” soon after he fell but also confirmed plaintiff was in a corridor or area where laborers were supposed to walk.
As to One City’s contention that plaintiff was cleaning the floor at the time of his injury and thus his § 241(6) claim should be dismissed, the Court found conflicting testimony as to whether plaintiff was in the act of cleaning the floor at the time of his incident. The Court held credibility issues and the weight to be given to each person’s testimony are issues for the jury to decide.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed and granted summary judgment to One City on plaintiff's Labor Law § 200 and common-law negligence claims. The Court determined that the appropriate standard to apply in this case is the dangerous condition standard and not the manner and means standard. The cause of the accident, the piece of loose pipe, was not a condition created by the manner in which the work was performed by plaintiff or his employer but was rather a condition that already existed prior to plaintiff's arrival on the fifth floor that day. As such, One City established prima facie that it did not create the condition and that it had no employees who could have had notice of the loose piece of sprinkler pipe. That One City was a subsidiary of Google did not alone put it on notice of anything Google employees knew or should have known.
Plaintiff failed to produce any evidentiary proof sufficient to rebut One City's prima facie showing that it did not create the hazardous condition and that it had no actual or constructive notice of it. There is no evidence in the record to suggest that any One City employee was aware or should have been aware of the loose pipe. In fact, there is no evidence that there were any One City employees present at the site on the day of the accident at all. Even assuming, arguendo, that One City was an “alter ego” of Google, plaintiff's argument that Google had constructive notice of the hazard because its employees might have seen videos recorded by cameras that were alleged to be in the area where plaintiff fell is mere speculation insufficient to raise an issue of fact.
Indemnity Issues in Labor Law (SEP)
One City’s application of contractual indemnification was awarded, although it took a circuitous path. Essentially, as a subsidiary of Google, One City was entitled to indemnity from Benchmark. Moreover, the Benchmark contract with Island Fire to indemnify all those entities that Benchmark agreed to indemnify.
In addition, One City also created a question of fact as to whether Island Fire breached its obligation to procure insurance. Island Fire was obligated, per its contract with Benchmark, to procure $5,000,000 in per occurrence coverage. Here, Island opposed the motion, and cross-moved for affirmative relief, after it produced a certificate of insurance which purported to establish that Island Fire procured a $2,000,000 CGL policy, along with $10,000,000 in umbrella coverage. The Court held that while a certificate of insurance may be sufficient to create a question of fact, it does not meet Island Fire’s burden to establish the existence of coverage as the moving party.
Peiper’s Point – Your mileage may vary with this one. While One City succeeded here, NY law generally abhors incorporation of contractual duties unless the duty at issue was clearly and specifically spelled out in the contact documents. Thus, generally, One City would need to point to a provision in the Island Fire/Benchmark Contract where Island Fire explicitly acknowledged it was agreeing to indemnity everyone identified in the Google/Benchmark contract.
De Souza v Empire Tr. Mix, Inc.
November 1, 2017
Appellate Division, Second Department
In this Labor Law action, the trial court denied defendant owner LIC summary judgment on its cross claims for contractual indemnity against defendant construction manager McGowan, who allegedly agreed to indemnify LIC from and against claims “arising out of or resulting from the performance of the [w]ork, provided that any such claim . . . is attributable (a) to bodily injury . . . and (b) to any act or omissions of [McGowan], anyone employed by it or anyone for whose acts it may be liable to the extent attributable or arising out of such act, omission or breach.”
Plaintiff was employed by a subcontractor of Casino Development, which was a subcontractor of McGowan, when he allegedly sustained injuries as a result of an allegedly malfunctioning hose pumping concrete at the construction site when it exploded.
Indemnity Issues in Labor Law (SEP)
LIC Res was able to establish the valid existence of a contractual indemnity clause running from McGowan. LIC also demonstrated that the incident arose from acts or omissions of McGowan and/or a McGowan subcontractor. Also, presumably, LIC established that it was free of negligence. Having established all three evidentiary requirements, LIC Res’ indemnity claim was granted.
November 1, 2017
Appellate Division, Second Department
Plaintiff allegedly fell from a makeshift scaffold while performing stucco work on defendant’s three-family residential building. Plaintiff testified that, after he completed one day of work, defendant instructed him to remove a scaffold he had constructed and “finish the job fast,” because a building inspector was coming. Plaintiff dismantled the wooden scaffold and continued working on a makeshift scaffold consisting of planks on a ladder laid horizontally across as fire escape and connected to the fire escape with wire.
Plaintiff fell when the ladder tipped over, after he placed a five-gallon container filled with stucco material on one end of it. His harness and safety line were was too long to prevent him from hitting the ground. The trial court granted defendant summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims, and denied plaintiff’s cross-motion. The trial court also denied plaintiff’s motion for leave to renew and/or reargue.
The Second Department held defendants’ failed to establish that no statutory violation occurred or that the alleged violation was not a proximate cause of the accident. Thus, the Labor Law § 240(1) claim was reinstated. However, because plaintiff provided conflicting accounts of how the accident occurred, the Court affirmed the trial court’s decision to deny plaintiffs' cross- motion as the conflicting accounts created a triable issue of fact.
PRACTICE POINT: While somewhat short on facts this case provides us with an opportunity to lay out the proof necessary to establish the sole proximate cause defense. A defendant must establish all five of the elements of the defense. There needs to be an 1) available and 2) appropriate safety device which the plaintiff was 3) instructed to use (or knew he was expected to use) which the plaintiff 4) failed to use or misused 5) for no good reason. Here a safety harness which is longer than the height the plaintiff was above the ground is not an appropriate safety device. In addition the conflicting accounts of how the accident occurred prevent either party from being awarded Summary Judgment. This again leads us to the advantage to be obtained from early and through investigation.
Plaintiff relies on regulation 1.16(b), which requires that safety belts and harnesses be properly attached to a tail line or lifeline so that “if the user should fall such fall shall not exceed five feet”. The Second Department found this regulation sufficiently specific, and held defendants failed to prima facie establish that the alleged violation was not a proximate cause of the incident. Thus, the Court reversed and denied this branch of defendants’ motion.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, finding that the Supreme Court should have denied that branch of the defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Here, the cause of action arose out of alleged defects or dangers in the methods or materials of the work. The defendants failed, prima facie, to eliminate triable issues of fact as to whether Villette had the authority to supervise or control the injured plaintiff's work, and as to causation.
Solorzano v Skanska USA Bldg., Inc.
November 1, 2017
Appellate Division, Second Department
Plaintiff allegedly fell from scaffolding while employed as an asbestos worker for nonparty PAL. He alleged defendant United Nations Building, the project manager, hired PAL to perform construction work pursuant to a written contract. Plaintiff was working upon an elevated scaffold when allegedly a “portion of the scaffold gave way, collapsed and/or broke, causing him to fall.”
The trial court denied plaintiff's motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims, finding plaintiff's own testimony, which was inconsistent as to how he had been injured, raised triable issues of fact. The jury rendered a verdict in favor of defendant and against plaintiff.
Based on the inconsistencies contained within plaintiff's own deposition regarding how the accident occurred and what caused the accident, the Second Department held plaintiff failed to meet his burden of establishing, prima facie, his entitlement to judgment as a matter of law on the Labor Law § 240(1) claim.
PRACTICE POINT: Inconsistencies within the version of events can also exist within the plaintiff’s own deposition testimony. As in this case, careful questioning of a plaintiff can elicit material differences in the manner in which the accident occurred, occasionally creating question fact based solely on plaintiff’s sworn testimony. This is even more so the case when there are multiple instances of sworn testimony by the plaintiff, for instance if a 50-h had been taken prior to the initiation of the lawsuit.
Plaintiff relies on regulation 5.18(b), entitled “Manually-propelled mobile scaffolds”, and requires safety railings on the platform of every manually-propelled mobile scaffold. Given plaintiff’s admission that there were guardrails on all four sides of the scaffold, the Second Department held plaintiff also failed to meet his burden of establishing prima facie entitlement to summary judgment on his Labor Law § 241(6) claim.
Duran v Temple Beth Sholom, Inc.
November 8, 2017
Appellate Division, Second Department
Plaintiff allegedly was injured while removing asbestos-laded flooring during demolition at defendant Temple’s property. Plaintiff testified at trial his work involved cutting and removing floor tiles and plywood from floor beams. At the time of the accident, the beams were wet. Plaintiff was wearing rubber boots with no tread. As he stood on a wet beam, he lifted a piece of plywood and fell from the beam.
The trial court found plaintiffs’ evidence demonstrated he was not provided with any safety devices to prevent him from falling off the beam, he was not directed to perform the work in a manner other than the way he was doing it, and he would not have been able to remove the plywood by standing on the ground next to the beam.
Plaintiffs' expert testified that a worker performing demolition work approximately four feet above the ground was entitled to proper protection to prevent him from falling. Defendants adduced evidence that the accident occurred in a manner different from that described by Duran at trial, a form he signed in his Workers’ Compensation case where he stated, "While working I slipped and fell over debris on construction site.”
Defense counsel during summation gave three reasons why the temple did not violate Labor Law § 240(1): (1) plaintiff did not fall from a beam—he slipped on construction debris; (2) if plaintiff fell from a beam, the beam was only two to three feet off the ground; and (3) in any event, if plaintiff fell from a beam, he was the sole proximate cause of the accident.
The trial court declined plaintiff’s request to have the jury determine whether plaintiff fell off the beam. The trial court also instructed the jury that Labor Law § 240(1) requires contractors and owners of properties being demolished to provide safety devices to the workers. Plaintiff was engaged in demolition, and, thus if the temple breached this statutory duty, and such breach was a substantial factor in causing his accident, then the statute required the imposition of liability, whether or not the temple was at fault and whether or not there was any fault on plaintiff. However, if plaintiff's actions were the sole substantial factor in bringing about the accident, then the jury had to find for the temple. The jury found that the temple did not violate the statute in favor of defendant, and plaintiff appealed the verdict as contrary to the evidence.
The Second Department found that the trial court should have granted plaintiffs’ request to ask the jury to determine not only whether the temple violated the statute, but also whether plaintiff fell off the beam. This was a fundamental error warranting a new trial because the Court held the instructions failed to explain to the jury that, in light of arguably inconsistent accounts of how the accident occurred, the jury was entitled find that plaintiff did not fall from the beam, or alternatively that he did fall from the beam but no safety device was required under the statute.
However, plaintiff was not entitled to set aside the jury verdict as contrary to the weight of the evidence and for judgment as a matter of law on the issue of liability because there was conflicting evidence as to whether plaintiff fell from a beam or tripped over construction debris.
PRACTICE POINT: Here we go again, another case where there are multiple versions of the incident supplied by plaintiff himself. In one of the versions supplied by plaintiff in his Worker’s Compensation form where he described it as slipping and falling over debris there is clearly no fall from a height and thus no 240(1) violation. This is an easy lesson to learn, go to every location where the plaintiff or anyone else has provided a version of how the accident happened, and read it.
Portalatin v Tully Constr. Co.- E.E. Cruz & Co.
November 8, 2017
Appellate Division, Second Department
Plaintiff, a stone tender employed by a nonparty subcontractor, was injured when he and his supervisor were using nylon straps to move a 500-to-600-pound granite stone four feet. As they began to lift the stone, plaintiff's supervisor lost his grip, which resulted in the stone falling a distance of eighteen to twenty inches onto plaintiff's right toe and causing him to fall. The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1), 200 and common-law negligence claims.
The Second Department affirmed with respect to this falling object case as Labor Law § 240(1) applies only when the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute, citing Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268-69. The Court found defendants established, prima facie, that the granite stone did not fall because of the absence or inadequacy of a safety device. In opposition, the trial court held plaintiff failed to raise a triable issue of fact.
PRACTICE POINT: In a victory for logic the 240(1) claim was dismissed because carrying a rock and dropping it on your foot is not the type of risk the scaffold law is designed to protect workers from. Precisely what type of safety device the plaintiff’s attorney would have had employed here other than a strap wrapped around the rock is not explained.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, finding that the Supreme Court properly granted that branch of the defendants’ motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims. Here, the defendants established, prima facie, that the plaintiff's injuries arose solely out of the manner of his employer's work and the defendants exercised no supervisory control over that work. The defendants’ authority to monitor safety conditions at the work site is merely indicative of their general supervision and coordination of the work site and is insufficient to trigger liability.
Kandatyan v 400 Fifth Realty, LLC
November 15, 2017
Appellate Division, Second Department
Plaintiff was pushing a dolly loaded with sheetrock up a temporary plywood ramp. As he was using momentum to push the dolly up the ramp, the dolly suddenly stopped. When plaintiff attempted to push the dolly forward using additional force, the dolly rolled backward down the ramp and struck plaintiff, causing his body to hit an adjacent concrete wall and fall onto the ramp. The dolly then struck a wall, which caused two pieces of sheetrock to break and fall down onto plaintiff.
The trial court granted defendants’ motion for summary judgment dismissing the Labor Law §§ 240, 200 and common-law negligence claims. The trial court then granted plaintiff’s motion for leave to reargue and adhered to its original determination.
The Second Department reversed the trial court, holding that the elevation differential between the worker and the loaded dolly while on a four-to-five-foot-high ramp cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating" and that the defendants failed to establish, prima facie, that Labor Law § 240(1) is not applicable on the ground that the injury did not result from a gravity-related or elevation-related hazard. The Court further noted Defendants also failed to establish that no safety device of the kind enumerated in the statute would have prevented the accident under the circumstances.
PRACTICE POINT: Here we have Runner revisited where it is not the distance the object falls, but rather "whether the harm flows directly from the application of the force of gravity to the object". The court specifically points out that the cart with the sheet rock on it weighed 1,000 pounds and that the force generated by that weight created the type of risk from which the statute is designed to protect workers.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department affirmed, finding that the Supreme Court properly awarded summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action. Here, the defendants established, prima facie, that they did not have authority to exercise supervision or control over the injury-producing work. In opposition, the plaintiff failed to raise a triable issue of fact.
November 15, 2017
Appellate Division, Second Department
Plaintiff was working at a retail property being refurbished. The property was owned and managed by Mall Properties and KMO-361 Realty, respectively, and leased by the Gap. The general contractor was James Hunt Construction (Hunt). Hunt hired Weather Champions to install HVAC, who in turn, hired APCO, plaintiff's employer, to insulate the HVAC work. Plaintiff allegedly fell off a ladder that was not stable.
At his deposition, plaintiff testified that as he applied tape to one of the ducts, he felt the ladder shake, and he lost his balance and fell. The trial court denied plaintiff summary judgment on his Labor Law § 240(1) claim, and granted defendants Mall Properties, KMO-361 Realty, the Gap and Hunt’s motion for summary judgment dismissing the Labor Law §§ 240(1), 241(6), 200 and common-law negligence claims.
The trial court also denied the Mall defendants’ motion for summary judgment on their cross-claims for contractual and common-law indemnity against Weather Champions, and their third-party claims against APCO for common-law indemnity, but granted their third-party claim against Harleysville for defense, indemnity and additional insured status but only declaring that a defense is owed. The trial court also denied Weather Champions summary judgment on its contractual indemnity claim against APCO, and granted Harleysville’s cross-motion to dismiss the third-party claims but denied it seeking a declaration that their policy was excess to Hunt's insurance carrier, nonparty Netherlands.
The Second Department held plaintiff established prima facie entitlement to judgment as a matter of law on the issue of defendants' liability on the Labor Law § 240(1) cause of action because plaintiff’s testimony showed that he was not provided with a proper and adequate safety device to perform his work at an elevated height, and that such failure to provide proper safety equipment was a proximate cause of the accident.
The Court rejected defendants’ sole proximate cause argument because they failed to submit sufficient evidence demonstrating plaintiff failed to use an appropriate safety device that was “readily available at the work site,” although not necessarily “in the immediate vicinity of the accident, despite being aware that he was “expected to use” such a device.
PRACTICE POINT: The attempted defense that there was a different and suitable safety device available for the plaintiff to use on site failed as the defendant was not able to provide proof in admissible form that there was a suitable device on site. Recall that the device need not be in the exact area where the accident occurred, but it must be on site and available, and the plaintiff needs to know it is there.
The Second Department held the Mall defendants failed to establish their prima facie entitlement the judgment as a matter of law insofar as the Labor Law § 241(6) claim predicated upon regulation 1.21(b)(3)(iv) and 4(ii). They did not show plaintiff’s conduct was the sole proximate cause, and Weather Champions’ contention that it was not a proper defendant is not properly before the Court as it did not raise this in support of its summary judgment motion.
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department reversed, finding that the Supreme Court should have denied the Mall defendants and Weather Champions motions for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action as they failed to establish their prima facie entitlement to judgment as a matter of law. Where, as here, 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. In moving for summary judgment, the defendants failed to address the allegation in the complaint that the plaintiff was injured due to the dangerous or defective premises conditions at the work site. Furthermore, contrary to the Supreme Court's conclusion, the plaintiff was not ultimately required to demonstrate that the Mall defendants actually exercised supervisory control. Here, the defendants failed to establish that they did not have the authority to supervise or control the means and methods of the work performed by the plaintiff. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motions should have been denied.
Indemnity Issues in Labor Law (SEP)
With regard to the various indemnity claims of the Mall Defendants, the Appellate Division looked first at the motion for contractual indemnification against Weather Champions. While Weather Champions did enter into a contract which contained an indemnity agreement, upon review of the actual language of the contract it was revealed that Weather Champions had no obligations unless the incident arose from its own negligence (or one of its subcontractor). Here, as noted above, the Mall Defendants failed to establish negligence against either Weather Champions or APCO. Accordingly, the Mall Defendants did not meet their burden.
With respect to the common law indemnity claim against Weather Champions, again Mall Defendants needed to demonstrate (a) that they were free of negligence and (b) that Weather Champions was negligent. Again, having failed to set forth a prima facie case of negligence against Weather Champions, this portion of the motion was likewise denied.
The Mall Defendants also sought common law indemnification against APCO. In addition to failing to demonstrate APCO’s negligence, the incident did not result in a grave injury as well. Thus, any attempt to collect under a common law indemnity theory against APCO (as plaintiff’s employer) were barred by operation of Section 11 of the Workers’ Compensation Law.
The attempt at contractual indemnification against APCO also failed where the Mall Defendants were unable to produce evidence of a contract between themselves and APCO. Moreover, because the Mall Defendants did not eliminate any possible allocation of negligence against themselves, General Obligations Law 5-322.1 also precluded an award of summary judgment.
On the insurance coverage aspect of this claim, Harleysville moved for summary judgment seeking a decision that it was excess over any and all available coverage afforded by Netherlands Insurance Company. In this case, the endorsement at issue provided that coverage for additional insureds was excess unless the underlying trade contract specifically required it to be primary. Here, the contract between Hunt and Weather Champions was silent on priority, and as such Harleysville was in an excess position. Moreover, as an excess insurer, the Appellate Division noted that Harleysville had no defense obligations to its putative additional insureds.
November 15, 2017
Appellate Division, Second Department
Plaintiff, an employee of a subcontractor hired by defendant RD2 Demolition, another subcontractor, allegedly was injured when he fell from a scaffold. Prior to the accident, plaintiff, assigned to remove windows from the third floor, was standing on a six-foot scaffold without guardrails, and wearing a harness and lifeline which he tied to a wooden column of the building.
Plaintiff cut a large piece of iron window frame and threw it to the ground, and the piece struck the scaffold on the way down. The scaffold allegedly moved, causing plaintiff to lose his balance, jump from the scaffold, and fall to the ground. The lifeline did not arrest his fall because it was too long. The trial court granted plaintiff’s motion for summary judgment on the 240(1) and 241(6) claims and denied defendants’ cross-motion.
The Second Department held plaintiff demonstrated he was injured when he fell from a scaffold and that he was not provided with adequate safety equipment to prevent him from falling, and defendant did not raise a triable issue of fact on the issue of sole proximate cause.
PRACTICE POINT: Who is surprised that the plaintiff was awarded Summary Judgment when he fell from a scaffold that shifted, had no guardrails and plaintiff was using a lanyard which was longer that the distance he was off the ground. The fact that the “series of unfortunate incidents” was launched by his throwing a piece of steel down which struck the scaffold does not change the fact that the safety devices he was provided were not appropriate, and that other safety devices which could have prevented the fall were not provided.
The Second Department held defendants failed to demonstrate their prima facie entitlement to summary judgment as they failed to eliminate all triable issues of fact as to whether plaintiff was provided with adequate protection to prevent him from falling. Thus, the trial court properly denied defendants’ cross-motion without regard to the sufficiency of the opposition papers. RD2 claim that is was not a statutory agent was improperly raised for the first time on appeal.
Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist.
November 9, 2017
Appellate Division, Fourth Department
Plaintiff and a coworker were instructed by their foreman to move two heavy switchgear segments from a loading dock to a room in the basement of the school. According to plaintiff, as he and the coworker were lifting the second segment, he felt a sharp pain in his back when the segment dropped or “rock[ed]” half an inch on his coworker’s side and, for a “split second,” the weight of the segment felt unstable and increased in plaintiff's hands. Plaintiff and his coworker did not drop the segment and, after a momentary pause, continued to raise it to an upright position. The trial court denied defendants summary judgment dismissing the Labor Law § 240 (1) claim, and denied plaintiff’s cross-motion for partial summary judgment on that claim.
The Fourth Department reversed the trial court as to defendant’s motion, finding that plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker’s side, which is not the type of gravity related injury contemplated by the statute and merely a “routine workplace risk” of a construction site and not a “pronounced risk arising from construction work site elevation differentials”. According, plaintiff’s cross-motion was denied.
PRACTICE POINT: Come on, how in the world did this one even get this far. Hurt his back when a piece of equipment shifted while lifting it, by hand? Moved by ½ inch? Once again logic and fairness have crept into the labor law.
November 9, 2017
Appellate Division, Fourth Department
Plaintiff was struck by a vehicle while taking elevation measurements of the New York State Thruway. The New York State Thruway Authority hired defendant Oakgrove to work on the Thruway and the Authority hired defendant Foit-Albert to inspect Oakgrove’s work. Foit-Albert subcontracted some of that work to plaintiff’s employer. Oakgrove performed some clearing work before suspending its operation for the winter shutdown period. Oakgrove removed all of its equipment and employees from the worksite.
Before the shutdown period, Oakgrove noted some of the elevation measurements provided by the authority were incorrect. In Oakgrove’s absence, Foit-Albert assigned plaintiff to take the new measurements. While doing so, plaintiff was struck by a vehicle that had left the roadway. The trial court denied Oakgrove’s motion for summary judgment on the Labor Law §§ 241(6), 200 and common-law negligence claims.
The Fourth Department rejected plaintiff’s contention that since Oakgrove provided GPS units for plaintiff to use, it had control over plaintiff or the work he was performing because “the determinative factor on the issue of control is not whether a contractor furnished equipment but, rather, is whether it has control of the work being done and the authority to insist that proper safety practices be followed”. Nothing in the record indicated that Oakgrove had such control over plaintiff’s work, and therefore he Labor Law § 241(6) claim should have been dismissed.
Labor Law § 200 and Common-Law Negligence (VCP)
The Fourth Department reversed, finding that the court should have dismissed the Labor Law § 200 claim and common-law negligence claims against Oakgrove. Defendant Oakgrove established that it did not have control over the work site at the time of plaintiff's accident, and plaintiff failed to raise a triable issue of fact. Furthermore, Oakgrove also established that it did not create or have actual or constructive notice of the dangerous condition of the work site.
Flowers v Harborcenter Dev., LLC
November 17, 2017
Appellate Division, Fourth Department
Plaintiff was injured while attempting to move a bundle of steel rebar to another location on the site. The rebar had to be moved by stacking it and then tying around the bundle a nylon strap, or a choker. The choker is then attached to a steel hook, which is attached to a main crane hook. The bundle is raised by a crane and is guided by a worker on the ground who communicates with the crane operator via a two-way radio. At the time of the accident, plaintiff and his foreman had already rigged chokers around the rebar, and plaintiff was using the radio to communicate with the tower crane operator and to direct the rebar's placement. While the load was in the air, it fell and struck plaintiff's head.
The trial court granted plaintiff's motion and defendants’ cross-motion on the Labor Law §§ 240(1) and 241(6) claims insofar as based upon Industrial Code regulations 6.1(d) and 8.1(f)(6).
The Fourth Department held plaintiff established “both (1) that the object was being hoisted or secured, or that it required securing for the purposes of the undertaking, and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential”, noting that the testimony and witness affidavits established the chokers failed in their core objective of preventing the rebar from falling, and that such failure was a proximate cause of the accident.
The Court also held defendants also failed to establish plaintiff was the sole proximate cause of his injures because the record established that plaintiff was not alone in rigging the rebar bundle and transporting it to a different area of the site, and thus plaintiff's conduct could not be the sole proximate cause of his injuries.
PRACTICE POINT: To be the “Sole Proximate Cause” of an accident the plaintiff need to be, by definition, the sole cause. Here the plaintiff was not alone and thus, could not be the sole proximate cause. This harkens to the 2015 Court of Appeals case Barreto where plaintiff fell into an open manhole on a work site, after he and another worker had removed the cover. As he did not remove the cover alone his actions could not be the sole proximate cause of the injury.
The Fourth Department concluded that the trial court erred in denying that part of defendants’ cross-motion concerning Industrial Code regulation 6.1(d) because that regulation “cannot serve as the basis for Labor Law § 241(6) liability because the tower crane used by plaintiff is specifically exempt from the mandate” of the regulation, citing Locicero v Princeton Restoration, Inc., 25 AD3d 644, 666 (2d Dept 2006).
The Court properly denied that part of defendants’ cross-motion with respect to 8.1(f)(6), which provides that “mobile cranes, tower cranes and derricks shall not hoist or carry any load over and above any person …” The Court found triable issues whether that regulation was violated i.e. whether the rebar was above plaintiff while it was being moved by the tower crane and, if so, whether such placement was a proximate cause of the accident.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
|
12 NYCRR § 23-1.10 – General Provisions; Hand Tools; Unpowered hand tools. |
Regulation § 1.10(a), providing that edged tools shall be kept sharp and maintained free from burns and mushroomed heads, and prohibits the use of tools with split or loose handles, is sufficiently specific to support a claim. |
Boots v Bette & Cring, LLC, 124 AD3d 1119, 3 NYS3d 141 (3d Dept 2015). |
Boots found reg is inapplicable to injury caused by dysfunctional locking mechanism of utility knife because looseness of knife’s locking mechanism is an internal component of knife and not a visible or functional part of handle itself. |
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