Labor Law Pointers
Volume VII, No. 8
Wednesday, June 6, 2018
A Monthly Electronic Newsletter Addressing New York State Labor Law Decisions and Trends
From the Editor:
Do you have a situation? We love situations.
It seems that plaintiffs create these situations with their insistence on creating a Rube Goldberg method for doing jobs which could be done more easily and safely without a great deal of effort. Immediately as I started to discuss this with other attorneys in the office I discovered that I am apparently old. Very few of my co-workers knew what I was talking about, so I shall try and explain it here. Per Wikipedia, my go to source, a Rube Goldberg machine is any confusing or complicated system. It is named for Reuben Garrett Lucius Goldberg, a cartoonist and inventor who developed complex methods to do simple tasks. Think Professor Potts from Chitty Chitty Bang Bang and his machine for making breakfast for the kids. The link to the video is here. https://www.youtube.com/watch?v=Qc9h6FC6QgU
Here is one of Rube Goldberg’s cartoons.
I mention Rube Goldberg as that was my first thought as I looked at the photos I had for this month’s edition. As always, I try and analyze the situation depicted in the photo and determine if it is a labor law situation, and if so, what defenses may be available.
In the first photo below the plaintiff is painting, an enumerated project, it appears to be a single family home so as long as it is not being used for commercial purposes the owner has the exception (unless that is him holding the ladder and supervising, directing or controlling the means and methods of the plaintiff’s work). If there is a general contractor with the authority to supervise direct or control the plaintiff they are an appropriate defendant.
The plaintiff (who we will assume is a “person so employed” is working at a height, thus any injury which is even the least bit caused by the effect of gravity (ok, so I am getting a bit jaded here by come on, the post Runner expansion of the labor law is getting completely out of hand) would create a prime facie §240(1) cause of action. We may have available a sole proximate cause defense if the plaintiff had ever been directed not to paint while standing on a ladder (note he is standing on a normal ladder, not a pic, and could step between the rungs and fall at any time) which was supported by two other ladders, one of which is capable of being folded up and the other at an angle from the roof to hopefully prevent the longer ladder from slipping along the ladder the plaintiff is standing on the edge of to paint. Remember that a general instruction to be safe (or not to be stupid in the case of this future plaintiff) is not sufficient to support a defense of sole proximate cause. Recall that the person holding the ladder is not a safety device as considered in the labor law.
In addition there would need to be an appropriate safety device available to the plaintiff on site that he did not use or misused.
In total this future plaintiff likely has a valid Labor Law §240(1) claim when he falls. If only the jury could see this picture.
In our next offering the plaintiff is standing on a cart, complete with wheels, balanced n a work bench, complete with bench grinder, which is balanced on the forks of a lift, and there is no one operating the lift. When the work bench tilts, just a little, and the cart rolls off and the plaintiff falls to the ground will that be a labor law §240(1) case?
It appears as if the plaintiff is installing a garage door so if we assume he is being paid to do so (remember to be a plaintiff in a labor law suit the plaintiff needs to be a “person so employed”) we then need to decide if he is in the employ of the owner of the building. If he is, the building owner is protected by the exclusive remedy protection provided by Comp §11. If he is not then the building owner is a proper defendant. Once again if he falls from that lofty yet incredibly unsafe perch, the resultant injury will be gravity related and provide for a claim. Additionally the act of installing a garage door would qualify as an alteration under Joblon and thus fall within the protection of §240(1). Once again however, underestimating the foolish nature of the actions of plaintiffs is not something I would ever recommend.
Busy month this month with 20 cases analyzed and summarized. For those of you who are new to our publication, we review ever Labor Law case from all 4 Departments and the Court of Appeals, provide a brief outline of the facts and our opinion of what the important elements of the case are and what we take away from it as a teaching point. If you click on the Caption of the case the hyperlink will take you directly to the official decision in full, if you click on the section of the statute you will be taken to the actual statute and if you click on the name of the team member doing the review it will open an email directly to that team member.
Please remember that we not only welcome questions about anything Labor Law or risk transfer related, but we look forward to them. Our team approach, a team composed of Labor Law attorneys and Coverage attorneys allows up to not only defend the case on the facts and the law, but to look for opportunities to transfer the risk through contractual indemnity, common law indemnity and through additional insured status. We look at all avenues to reduce the risk to our clients.
I would be remiss not to mention that our sister publications, Coverage Pointers edited by Dan Kohane and Premises Pointers edited by Jody Briandi offer similar insights in their respective fields. Just click on their names to open an email directly to them to request that you be added to the distribution list.
Hope you enjoy this edition, until next month enjoy the summer and remember that we love situations. Thanks.
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.
Bautista v Archdiocese of N.Y.
May 3, 2018
Appellate Division, First Department
Plaintiff was repairing a detached garage associated with a church rectory used for both residential and church purposes when he allegedly fell from a scaffold. The certificate of occupancy indicates the rectory constituted a dwelling and a private garage. The trial court denied plaintiff’s summary judgment motion for his Labor Law § 240(1) claim, and denied defendants’ motion to dismiss the complaint.
The First Department unanimously modified by finding that the homeowner’s exemption applied to this case because the structure was used for residential and church purposes, and the certificate of occupancy listed the rectory as a private dwelling. The Court also found that Defendants’ failure to plead the homeowner’s exemption as an affirmative defense did not preclude judgment in their favor as plaintiff was not surprised by this defense and fully opposed the motion.
PRACTICE POINT: Do not forget that a mixed use residence is not necessarily precluded from the exemption from applicability of the Labor Law, where the work being done is for a residential purpose, even if there is also some degree of commercial purpose, the exemption will apply for the owner.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed and dismissed these claims because plaintiff’s fall from scaffolding involved the means and methods of his work, which were supervised and controlled solely by his employer.
Greenwood v Whitney Museum of Am. Art
May 3, 2018
Appellate Division, First Department
Plaintiff allegedly was injured during construction of a building when a piece of scrap metal fell on him. The metal was being used by his coworker, who was welding steel thirty feet above on a lift, as “dunnage” to secure a “fire blanket” to prevent sparks from igniting objects in surrounding areas. Plaintiff was “fire watching”, which required him to remove flammable objects and suppress any fires started by errant sparks. The trial court granted plaintiff's motion for partial summary judgment on his Labor Law §§ 240(1), 241(6), and 241-a claims.
The First Department found the record establishes plaintiff's injury was the proximate result of the failure to take adequate steps to secure the piece of scrap metal from falling from the height at which it was being used. Plaintiff's Labor Law § 241-a claim was raised for the first time in his supplemental bill of particulars, served only three days before he filed his motion, and was not alleged in the complaint. Thus, the Court denied the § 241-a motion dealing with planking to be placed above and below workers working in shaftways and stairwells, without prejudice to plaintiff's ability to move to amend the complaint to add such a claim.
PRACTICE POINT: On any falling object case the issue is whether the object that fell required securing. Here the piece of steel that fell was determined to require securing, the lack of which caused the injury.
The First Department found triable issues of fact precluding partial summary judgment on the Labor Law § 241(6) claim predicated upon an alleged violation of Industrial Code (12 NYCRR) regulation § 23-2.5(a)(1), which requires placement of planks in shafts “not more than two stories or 30 feet, whichever is less, above the level where persons are working”. Here, the Court found triable issues as to whether the piece of steel fell from “more than two stories or 30 feet”, and whether the placement of planks would be antithetical to plaintiff’s work by, for example, obstructing his view, or increasing the risk of fires caused by sparks.
Santiago v 44 Lexington Assoc., LLC
May 3, 2018
Appellate Division, First Department
Plaintiff allegedly was injured when he slipped on debris while performing work in connection with the installation of a window washing system subcontracted to Tractel as part of the construction of a building. Pursuant to its contract with defendant owner, Brown was responsible for maintaining the premises free of debris. The trial court granted Tractel’s summary judgment motion dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims.
Since the debris removal giving rise to plaintiff's injury was not within the scope of authority or work delegated to Tractel, the First Department found that it may not be liable to plaintiff under Labor Law §§ 240(1) or 241(6) as a statutory agent of the defendant general contractor.
PRACTICE POINT: Short answer here, if it is not within your area of authority but rather in some other contractor’s area, you are not an appropriate defendant. To be an appropriate contractor defendant in a Labor Law case you need to have authority over the type of work being performed when the plaintiff was injured.
Taylor v Montreign Operating Co., LLC
May 3, 2018
Appellate Division, First Department
Defendants submitted the affidavits of four first responders and plaintiff's coworker, all of whom averred that they would testify as witnesses but would be inconvenienced by traveling to New York County. The underlying accident occurred in Sullivan County, and other than one defendant's registered principal place of business, and one of plaintiff's physicians maintaining an office in the county, this matter has no contact with New York County. The trial court denied defendants’ motion to change venue from New York County to Sullivan County.
The First Department reversed, finding plaintiff's argument unpersuasive that the affidavits submitted by defendants were not sufficiently detailed, and plaintiff offered nothing to rebut defendants’ assertions that his coworker, the first responders, and the sheriff who investigated the accident were material witnesses, as they averred in their affidavits. Further, the Court held plaintiff's assertion that he alleged violations of the Labor Law, and thus liability may be resolved prior to trial, is not relevant to the present issue of venue.
PRACTICE POINT: While the court has a lot of discretion in venue issues, where the only tie to a specific venue is one defendant’s corporate headquarters the courts will often support a motion for a change of venue, which can be an important motion if the plaintiff is trying to get a case into the Bronx or Erie County.
Galvez v Columbus 85th St. LLC
May 15, 2018
Appellate Division, First Department
Plaintiff allegedly was injured while ascending to the top of a building on a motorized suspended scaffold. He testified the scaffold had swung into a recessed area between two horizontal concrete beams (spandrels) and, to clear the top spandrel, he and his coworker had to press their backs against the wall and use their legs to push the scaffold out as they moved it up. In pressing against the wall and pushing the scaffold with his legs, plaintiff injured his lower back.
The trial court granted defendants’ motions for summary judgment dismissing the Labor Law § 240(1) and 241(6) claims, granted defendant Pinnacle's summary judgment motion dismissing Labor Law § 200 and common-law negligence claims as against it, and denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.
The First Department held plaintiff’s incident falls within the ambit of Labor Law § 240(1) because the scaffold proved inadequate to shield plaintiff from “harm directly flowing from the application of the force of gravity to an object or person”, citing Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 (2009). The Court held the force of gravity caused the scaffold to swing into the recessed areas between the spandrels; necessitating plaintiff and his coworker use their backs to exert force to swing the scaffold out again. The Court also held neither side was entitled to summary judgment, finding an issue of fact exists as to whether plaintiff's negligence was the sole proximate cause of his injuries in light of the conflict whether plaintiff had been instructed to push off the scaffold in the manner described.
PRACTICE POINT: This is madness. That comment aside let’s recall that commercial, but not residential window washing is a covered task. The rest of this case is pure madness. I can’t even bring myself to discuss this decision or try and justify the decision. Nothing but the Runner decision run amuck.
The First Department held defendants were entitled to dismissal of this claim because Industrial Code regulation 5.8(c)(2), which concerns the horizontal displacement of suspended scaffold platform, is inapplicable to the facts of this case.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed dismissal of this claim against Pinnacle because the evidence fails to show it either had notice of a dangerous or defective condition at the site or it controlled the means and methods of plaintiff’s work. The Court noted although Pinnacle supplied the scaffold, plaintiff’s employer installed it and there is no evidence Pinnacle’s personnel who were on site had notice that it was inadequate or defective. Nor was there evidence Pinnacle supervised, directed, or controlled plaintiff’s work.
Pacheco v Almeida Concrete Pumping & Equip., Inc.
May 15, 2018
Appellate Division, First Department
Defendant Almedia leased equipment and two employees to operate the equipment, for the pouring of concrete on the subject project, purportedly under the supervision of defendant subcontractor Scariano. Although Almeida's employees controlled the equipment, they were told where and when to pour the concrete. The trial court denied, as relevant here, Almeida’s summary judgment motion seeking dismissal of plaintiff's Labor Law §§ 241(6) claim.
The First Department unanimously affirmed as it is not at all clear that Almeida’s employees did not control, or partially control, the cleanup of the pouring concrete work during which the accident occurred. Additionally, the Court found issues of fact as to whether Almeida was a statutory agent of the owner or general contractor, with supervisory control and authority over the work being performed at the time of plaintiff’s injury.
Maman v Marx Realty & Improvement Co., Inc.
May 17, 2018
Appellate Division, First Department
Plaintiff, an ironworker, allegedly fell through an opening in the floor of a building under construction. The trial court, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and on his Labor Law § 241(6) claim predicated upon a violation of Industrial Code regulation § 23-1.7(b)(1).
"[A] fall through an unguarded opening in the floor of a construction site constitutes a violation of Labor Law § 240(1) only where a safety device adequate to prevent such a fall was not provided. A safety line and harness may be an adequate safety device for a person working over an open area or near an elevated edge”, citing Guaman v City of New York, 158 AD3d 492, 492-493 [1st Dept 2018]). Here, the Court held that although plaintiff was wearing a harness and lanyard at the time of the accident, triable issues existed as to whether static lines were in place for him to safely tie off.
PRACTICE POINT: This question is often at the heart of harness and lanyard cases, could the plaintiff clip in or did he need to work un-clipped to perform his work. As is often the case a question of fact is the finding as when the plaintiff says there was no way to work clipped in and a witness or expert says that it could be done while clipped in, the court is not empowered to determine that question of fact, but it must be left to the jury.
In light of the foregoing, the First Department also found an issue of fact as to whether any violation of this statute under 1.7(b)(1) dealing with falling hazards and hazardous openings, was a proximate cause of plaintiff’s accident.
Radeljic v Certified of N.Y., Inc.
May 22, 2018
Appellate Division, First Department
A safety harness with permanently attached lanyards was available on the first floor of the building near the elevator shaft into which plaintiff fell. Plaintiff was a foreman who had the authority to order his subordinate, who was present at the time of the accident, to replace the barricade positioned in front of the elevator shaft opening.
The trial court denied defendant Certified of N.Y., Inc.’s summary judgment motion dismissing the complaint against it and on its contractual indemnification claim against third-party defendant Prokraft, denied plaintiffs’ cross-motion for partial summary judgment on the Labor Law § 240(1) claim and on the Labor Law § 241(6) claim based on violations of Industrial Code regulation 1.7(b) and (e), and denied Prokraft's summary judgment motion seeking dismissal of the Labor Law §§ 240(1) and 241(6) claims and on the third-party contractual indemnity claim.
The First Department unanimously affirmed, finding issues of fact as to whether plaintiff's own conduct was the sole proximate cause of his accident. The Court held the witnesses’ conflicting statements about who was responsible for removing a plywood barricade positioned in front of the elevator shaft opening also presented issues of fact as to whether plaintiff, as a foreman, was the sole proximate cause of his accident. The Court pointed out that to establish the defense of sole proximate cause, defendant was not required to show that plaintiff received an instruction about using the harness immediately before commencing the work in question or on the same day as the accident (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004] [recalcitrant injured worker "was not the less recalcitrant because there was a lapse of weeks between the instructions and his disobedience of them"]).
PRACTICE POINT: Here the First Department again found a question of fact as to whether the plaintiff, who had a harness and lanyard, could have reached the location where he needed to work had he been clipped to the static line and thus a question of fact for a jury. Remember that it is often essential to have an investigation at or near the time of the accident, photos of the location as it existed at the time of the accident can be crucial bit of evidence for the trial, or for the expert to use in formulating his opinion.
The First Department also held the issues of fact as to the safety harness and the barricade also precluded summary judgment to the extent the Labor Law § 241(6) claim is based on violations of 1.7(b)(1). The conflicting evidence as to whether plaintiff tripped and fell on rope on the floor also presents issues of fact whether 1.7(e), dealing with tripping and other hazards, was violated.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department found conflicting testimony as to who was responsible for removing the barrier from the elevator shaft opening and whether plaintiff tripped on rope defendant’s employees allowed to accumulate on the floor. Thus, the Court held issues of fact as to whether plaintiff’s accident was caused by a dangerous condition created by defendant or by the means or methods of plaintiff’s or his employer’s work.
Indemnity Issues in Labor Law (SEP)
Where, as here, there remains an issue of fact as to the party seeking indemnity’s own negligence summary judgment is inappropriate. The Court noted, however, that as the contract contained “insurance savings language” it was not violative of General Obligations Law 322.1.
Peiper’s Point – Note, a party cannot be indemnified for their own negligence. They may, however, obtain contribution for liability that is statutorily created under the Labor Law and which is attributable to someone else’s negligence.
Adagio v New York State Urban Dev. Corp.
May 24, 2018
Appellate Division, First Department
Plaintiff tripped on a pile of sand on the ground, at the same level at which he was walking. The trial court denied defendants USRC and A-Deck’s summary judgment motions dismissing the complaint and all cross claims against them.
The First Department unanimously reversed, holding the Labor Law § 240(1) claim should have been dismissed because plaintiff's accident did not involve an elevation-related risk pursuant to Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 (2009).
PRACTICE POINT: An obvious decision in my mind, but this is the same court that just 9 days earlier held that it was a §240(1) case when a plaintiff hurts his back pushing a window washing scaffold away from a wall so nothing is sure in the universe of Labor Law.
The First Department also dismissed this claim because the statute does not automatically apply to all subcontractors on a site or in the chain or command, and here, there is no evidence that either USRC and/or A-Deck exercised any control over plaintiff or his injury-producing work.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department reversed and dismissed this claim as neither USRC nor A-Deck may be liable as there is no evidence they had the authority control the injury-producing activity, and there is no evidence it is their sand that caused plaintiff’s fall.
Indemnity Issues in Labor Law (SEP)
It follows logically that in light of dismissal of the negligence claims, USRC and A-Deck were entitled to summary judgment dismissing the cross-claims against them for contractual and common-law indemnification and contribution.
Jackson v Hunter Roberts Constr. Group, LLC
May 29, 2018
Appellate Division, First Department
Plaintiff alleges that he and a coworker were carrying a water main pipe when he lost his balance upon stepping on a makeshift ramp that “bowed”. The weight of the pipe caused them to fall and, as plaintiff was trying to push or eject the pipe from his shoulder to prevent it from landing on him, the pipe struck either a cart or a column, retracted back, and struck him in the leg. The trial court denied defendants’ summary judgment motion dismissing plaintiff's complaint alleging violation of Labor Law §§ 240(1), 241(6), 200, and common law negligence.
The First Department held plaintiff's testimony established that he was not exposed to the type of elevation-related hazard contemplated by the statute because the height differential of six to ten inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute. Also, as the ramp was serving as a passageway, as opposed to the “functional equivalent” of a safety device enumerated under the statute, the Court also held that this claim did not fall within the purview of the statute. Further, the impetus for the pipe's descent was plaintiff's loss of balance, rather than the direct consequence of the force of gravity.
PRACTICE POINT: Sanity again from the First, maybe I reacted too harshly. Walking up a 6 to 10 inch ramp is simply not the type of elevation related hazard the statute is designed to protect plaintiffs from.
The First Department held defendants were entitled to dismissal of this claim as regulations 1.5(c)(1) and (2) are too general to support a Labor Law § 241(6) claim, and 1.5(c)(3) does not apply here because the ramp does not constitute a “safety device”, “safeguard”, or “equipment” as used in the provision.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed denial of defendants’ motion as the record contains “facts essential to justify opposition may exist but cannot then be stated” under CPLR § 3212(f) because no representatives from defendants have been deposed and the record suggests that crucial facts may be within defendants’ knowledge and thus additional discovery is necessary.
Santos v Condo 124 LLC
May 29, 2018
Appellate Division, First Department
Plaintiff allegedly was injured when he fell from a scaffold at a construction site. Defendants Condo 124 LLC, 124 Longview Owners, LLC, and Ramius, LLC were the owners, and Ross was the construction manager, who retained CRSG as a site safety consultant. Plaintiff worked as a mason's helper for nonparty subcontractor Bayport, who erected the scaffolds in order to perform its masonry work. Plaintiff testified he was responsible for carrying materials, and on the day of his accident, he was doing so with marble that weighed 400 to 500 pounds down to the cellar.
The accident occurred when Plaintiff and a coworker carried a block of marble up the scaffolding. Plaintiff was walking backwards with the coworker facing him. Once he got "upstairs" he “step[ped] back” and went “completely downwards. He did not have a back brace, harness, or other safety equipment at the time. Plaintiff alleges that when he fell, the floor was missing some of the wood planks, which caused the accident.
According to Plaintiff, it was evident Bayport's employees, who erected the scaffold that morning, did not install all the necessary planking. It is undisputed that Santos only received instructions from other Bayport employees, who were required to inspect all scaffolds daily. After the accident, a Bayport employee inspected the scaffold and saw six planks on the platform with no space between the stairs and the platform, and nothing was wrong with the scaffold.
The trial court denied CRSG's summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims asserting it was not a statutory agent, denied plaintiff’s cross-motion on his 240(1) claim, and granted defendants’ summary judgment motion dismissing the 241(6) claim predicated on Industrial Code regulations 1.7(b)(1)(ii), (iii), 5.2(j), and 5.3(e) as well as the 200 and common-law negligence claims.
The First Department affirmed, finding the authority of CRSG’s site safety manger, as their employee, to stop work in the event of unsafe practices raises an issue of fact as to whether it was a “statutory agent”. Further, the majority held plaintiff’s cross-motion was also properly denied because defendants raised an issue of fact through testimony directly contradicting plaintiff’s version of the accident. The majority also noted there appeared to be inconsistencies between plaintiff’s testimony and affidavit submitted in support of his cross-motion.
Justice Moutlon’s dissent would grant plaintiff’s cross-motion because, citing Runner, even if there was no gap in the planking of the scaffold platform, plaintiff established his injuries were “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”.
PRACTICE POINT: The main point here is the difference in the description of the site of the accident, once again supporting my belief that early and good investigation is often the best defense to any Labor Law case.
The First Department also affirmed the trial court’s decision to dismiss this claim based on 1.7(b) as inapplicable to the facts of the case because the hole plaintiff fell into was not required by his work, and nothing about his work required him to be near the edge of an opening. The Court further affirmed dismissal of this claim predicated on 5.1(j) and 5.2(e) as inapplicable because at no time did plaintiff claim he was caused to fall due to inadequate railings. However, the dissent would also reinstate this claim based on 5.1(j) and 5.2(e) as plaintiff’s affidavit attributed his accident to the lack of railings, and defendants failed to submit proof showing that the lack of safety railings was not the proximate cause of the accident.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed dismissal of these claims because, to the extent they are based on an alleged dangerous or hazardous condition, defendants did not create the hole into which plaintiff fell, nor did they have actual or constructive notice of it. The scaffold plaintiff fell from was inspected every day and at no time was a hole in the wooden platform discovered. There was also no evidence defendants exercised any control over the means and methods of plaintiff’s work or those choices of his employer.
Giancola v Yale Club of N.Y. City
May 31, 2018
Appellate Division, First Department
Plaintiff allegedly was injured when the particle board covering an escape hatch on top of the elevator car where he was required to work collapsed when he traversed it. The trial court granted defendant's motion to dismiss the Labor Law § 240(1) claim, and denied plaintiff’s cross-motion for partial summary judgment on his Labor Law §§ 240(1), 200, and common-law negligence claims.
The First Department held plaintiff's cross-motion should have been granted because there is no issue of fact as to whether it was foreseeable that the particle board covering an escape hatch on top of the elevator car where plaintiff was required to work would collapse when traversed by him. The Court held it was not dispositive that the escape hatch covering was not intended to serve as a safety device protecting workers from elevation-related risks; rather, since plaintiff's work exposed him to such risks, he was required to be provided with adequate safety devices in compliance with Labor Law § 240(1).
PRACTICE POINT: The argument that the board put down to cover the hole was not intended to prevent the plaintiff from falling through the hole as he worked there is not likely to work in any court. Plaintiff was required to work there, so there needed to be a safety device which actually would prevent him from falling through the hole.
Labor Law § 200 and Common-Law Negligence (VCP)
The First Department affirmed the trial court’s denied of plaintiff’s cross-motion as the record shows triable issues as to whether defendant had notice that the escape hatch cover, which was made of particle board, posed a hazard and whether it was defendant’s employees that caused this hazardous condition.
Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp.
May 31, 2018
Appellate Division, First Department
Plaintiff allegedly was injured in an accident while performing external masonry work. He was standing on a pipe scaffold when a large masonry stone fell onto the scaffold, damaging its “bicycle”, which was holding up the wooden planks and causing the planks to collapse from under plaintiff's feet, and he fell thirty-five feet to the ground. The trial court granted plaintiff's summary judgment motion on his Labor Law § 240(1) claim, and denied defendants cross-motion for summary judgment dismissing the complaint as untimely.
The First Department unanimously affirmed as plaintiff was entitled to summary judgment as to liability on his Labor Law § 240(1) claim because he established, prima facie, that he was engaged in an activity falling within the statute, and defendants failed to provide him proper safety equipment, either in the form of a scaffold that could withstand the force of a falling masonry stone, something to which plaintiff could safely hook his harness in order to avoid falling, or any other appropriate safety device. Plaintiff further demonstrated defendants’ failure to provide an appropriate safety device was the proximate cause of the accident, and the Court held defendants failed to raise an issue of fact.
PRACTICE POINT: In any case where the plaintiff is on a scaffold at the beginning of the description of the accident, and on the ground at the end, the defense has an uphill battle on their hands. Here the scaffold, the provided safety device, did not protect the plaintiff from falling to the ground. Therefor the device was not sufficient, and a prima facie case was established.
Yao Zong Wu v Zhen Jia Yang
May 2, 2018
Appellate Division, Second Department
Plaintiff allegedly was injured when, in the course of performing work at a rental property owned by defendants, he fell off an aluminum A-frame ladder. He testified at his deposition he ascended the ladder with a caulking gun in his right hand and braced himself on a wall with his left hand. As he applied caulking to the ceiling, he felt the ladder shake; then the ladder leaned and he fell to his right, causing him to fall to the ground. He did not know what caused the ladder to shake and lean; he had used this ladder in the past, and noticed nothing defective or broken about it.
The trial court denied plaintiff's summary judgment motion on his Labor Law § 240(1) claim and granted defendants’ motion to dismiss that claim as well as the Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.21(b)(4)(ii).
The Second Department affirmed the trial court’s denial of plaintiff’s motion, finding issues of fact, based on his own submissions, as to how this accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide plaintiff with proper protection proximately caused his injuries. Accordingly, in light of the inconsistencies as to how this accident occurred, the Court also held defendants failed to demonstrate as a matter of law that the ladder provided proper protection, or plaintiff was the sole proximate cause of his injuries.
PRACTICE POINT: Inconsistencies in the manner in which the accident occurred, where one version supports a labor law case and where one version does not, create a question of fact that only a jury can determine. Again, early investigation can be a huge asset in the defense of a Labor Law case. The First Department has been finding a lot of questions of fact this month.
The Second Department affirmed dismissal of this claim although for a different reason than the trial court. Here, the Court held defendants established as a matter of law that the alleged violation was not a proximate cause of plaintiff’s accident under Industrial Code regulation 1.21(b)(4)(ii), and plaintiff failed to raise an issue of fact in opposition.
Rodriguez v 250 Park Ave., LLC
May 9, 2018
Appellate Division, Second Department
Plaintiff allegedly was injured while employed as an elevator mechanic at the premises while working inside an enclosed concrete crawl space underneath the elevator motor room called a “secondary”. According to plaintiff, while the elevator was in operation and as he was moving to the exit hatch, he tripped and his left arm was injured when it was caught inside a pulley system (sheave) that had been activated when his assistant began to operate the elevator.
The trial court denied defendants’ summary judgment motion on the Labor Law § 241(6) claim predicated on a violation of Industrial Code regulation 1.7(e)(1), but granted defendants’ motion to dismiss the common-law negligence claim. The trial court also granted dismissal of the Labor Law § 241(6) claim predicated on regulations 1.12(e) and (g), and denied plaintiff's cross-motion for summary judgment on those regulations.
The Second Department affirmed denial of defendants’ motion as to 1.7(e)(1) because they failed to demonstrate that this provision lacked the requisite specificity to support plaintiff’s claim and that this regulation did not apply to the facts of this case. The Court also reversed regarding regulations 1.12(e) and (g) as they are both sufficiently specific to support a Labor Law § 241(6) claim. Despite defendants’ claim that the elevator sheave was protected by its locations (see 1.12[e]) inside the secondary (see 1.12[g]), the Court held plaintiff, through his expert, raised a triable issue of fact regarding the adequacy of this form of protection with respect to an elevator mechanic performing work inside the secondary. The Court further pointed out that since plaintiff has not contended that, at the time of his accident, he was operating or otherwise performing work on the sheave, the safety requirements of 1.12(e) remain applicable, and that regulation should not have been dismissed as well as for regulation 1.12(g).
Labor Law § 200 and Common-Law Negligence (VCP)
The Second Department revised the trial court’s dismissal of this claim as they failed to establish that plaintiff’s act of moving across the secondary to the entry/exit hatchway while the elevator sheave was in operation “was so extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant’s conduct as to constitute a superseding act which beaks the causal nexus”. Thus, the Court found triable issues whether plaintiff’s conduct constituted a substantial factor in causing his accident, and if so, to what extent he was responsible for the accident.
Carlton v City of New York
May 16, 2018
Appellate Division, Second Department
Plaintiff, a steamfitter employed by nonparty JDP, allegedly was injured while working in defendant’s building. Plaintiff and a coworker were installing a fitting to connect a valve to an existing piece of pipe. He and his coworker used a scissor lift to raise the flange, which weighed 80 pounds, to the height of the pipe, 16 feet above the floor. He then began the process of temporarily securing the flange to the pipe by making the first two of four small tack welds. After determining that they needed a grinder to level the flange, they lowered the scissor lift to the floor. While plaintiff waited on the scissor lift for his coworker to retrieve the grinder, the tack welds broke, causing the flange to fall and strike plaintiff on his head and back.
The trial court denied the defendants' summary judgment motion dismissing the Labor Law §§ 240(1) and 241(6) claims predicated upon an alleged violation of Industrial Code regulation 1.8(c)(1), and granted plaintiffs’ cross-motion for summary judgment on his 240(1) claim.
The Second Department reversed and found that neither plaintiff nor defendants established their prima facie entitlement to judgment as a matter of law with respect to the Labor Law § 240(1) claim as the parties’ submissions raised triable issues of fact as to whether defendants were obligated to provide appropriate safety devices of the kind enumerated in the statute to secure the flange and whether the flange fell due to the absence or inadequacy of an enumerated safety device. A safety manager for Turner/STV, testified at his deposition that "[d]epending on . . . what the operation is," "[s]lings, chokers [can be] used to . . . hold [a flange] in place" until it is permanently welded to the pipe. While it is true that no safety device such as a sling was provided, the Court held that the tack welds do not constitute a safety device based on plaintiff’s testimony that two tack welds should have been sufficient to secure the flange.
PRACTICE POINT: It was the plaintiff’s own testimony, that 2 tack welds should hold the flange in place that carried the day here. Careful preparation for the deposition is always essential in this type of situation, and having plan going into the deposition of what testimony is needed is critical.
The Second Department affirmed denial of defendants’ motion to dismiss this claim based on 1.8(c)(1), finding a triable issue of fact whether defendants provided plaintiff with “an approved safety hat” to protect him from being struck by the falling flange in light of the fact that although he was provided with and instructed to wear one, it could not be worn with his welding shield and he was not done with the welding work at the time of his accident.
Munzon v Victor at Fifth, LLC
May 30, 2018
Appellate Division, Second Department
Plaintiff allegedly was injured when he fell from a wooden beam in the course of the demolition of a building owned by defendant Victor. Prior to the accident, plaintiff had been in the process of removing the floor of the fourth story of the subject building. That morning, plaintiff put on his safety harness, which he attached to a cable safety line, as instructed by his employer that morning. A coworker requested plaintiff's help in removing debris consisting of metal beams that were too heavy for one person to move. Plaintiff detached the harness from the safety line, because the safety line was not long enough to allow him to reach his coworker. While he was helping his coworker move the first metal beam to throw it down to the third floor, in the manner in which they had been instructed by their employer, the end of the metal beam that the coworker was holding hit part of a wood beam on which the plaintiff was standing. The metal beam caused the wood beam on which plaintiff was standing to move and he fell through the partially demolished fourth floor to the third floor.
The trial court granted plaintiff's motion for summary judgment on the Labor Law § 240(1) claim, and denied defendants’ motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action. A trial was subsequently held on the issue of damages. After the trial on damages, a judgment was entered in favor of plaintiff.
The Second Department affirmed, finding plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability because he demonstrated that he was injured when a metal beam that he and his coworker were in the process of discarding struck the wooden beam on which plaintiff was standing, causing the wooden beam to move. The Court also held plaintiff was not provided with adequate safety equipment to prevent him from falling at the location where he was helping his coworker. In opposition to plaintiff's prima facie showing, the Court held defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether plaintiff's own conduct was the sole proximate cause of the accident.
PRACTICE POINT: Where the plaintiff fell from a ladder, or a beam, or a scaffold, where the safety device from which the plaintiff fell move or shifted causing the plaintiff to fall, it is a very good bet that the plaintiff will obtain Summary Judgment, and he will certainly prove aprime facie case on that those facts.
Wellington v Christa Constr. LLC
May 3, 2018
Appellate Division, Third Department
Plaintiff, an employee of a masonry subcontractor, was setting up scaffold at ground level when he was struck in the head by a truck tire rim that fell from the roof overhead. Tower owned the tire rim and placed it in its own work area for use of its own activities. The trial court denied plaintiff’s summary judgment motion on his Labor Law § 240(1) claim, and denied Christa’s cross-motion for contractual defense and indemnity on its third-party claims against Tower. The trial court also, as relevant here, denied Tower’s cross-motion on its cross-claim against Christa and denied Tower cross-motion to dismiss the Labor Law § 240(1) claim.
The Third Department initially rejected Tower’s claim to dismiss the Labor Law § 240(1) claim as Wellington was employed by another subcontractor and Tower had no authority over his work or the ground-level area where he was injured. The Court found a significant elevation-related risk inherent in the placement of the tire rim on a roof several stories above an area where others were working, the tire rim was an integral part of Tower’s undertaking in renovating the roof, and, because of the hazard created by the elevation differential, it plainly “required securing for the purpose of that undertaking”, citing Outar v City of New York, 5 NY3d 731, 732 [2005]). Thus, the Court held Labor Law § 240(1) applied to this accident and found plaintiff should have been awarded summary judgment on this claim because plaintiff was stuck by a falling object.
PRACTICE POINT: The necessary element to be an appropriate defendant in a Labor Law case include any contractor with the authority to supervise, direct or control the means and methods of the injury producing work. The place to look for that is in the contacts, including the general provisions. That a tire rim placed on a roof needs to be secured such that it does not fall onto the workers below seems logical, especially given the testimony that rims used for safety barriers are secured by sand bags in some instances, but not here. That failure to secure the rim with sand bags caused the rim to fall and thus was a violation of §240(1).
Labor Law § 200 and Common-Law Negligence (VCP)
For the same reasons, the Third Department found the evidence establishes that Tower had the authority to supervise and control both the activity that caused the injury and the area where the work occurred. Thus, Tower is not entitled to dismissal of the Labor Law § 200 or common-law negligence claims.
Indemnity Issues in Labor Law (SEP)
The motions of Christa and Tower for contractual indemnification were denied where the operative clause only triggered when Tower’s negligence resulted in the loss. Here, as the submissions failed to answer the question as to Tower’s negligence, summary judgment was premature.
Maracle v Autoplace Infiniti, Inc.
May 4, 2018
Appellate Division, Fourth Department
Plaintiff allegedly was injured when he slipped on a landscaping rock on property owned by BHWL and maintained by the Autoplace, Northtown, and West Herr defendants. Plaintiff was working for Ad-A-Sign, a sign maintenance and alteration company that had been retained by the Autoplace and Northtown defendants to perform work on the signs near defendants’ dealerships. As he was removing letters from a sign, plaintiff stepped onto a landscaping rock located below the sign, lost his balance, and slipped from the rock. The trial court denied plaintiff’s motion for partial summary judgment, and granted defendants’ cross-motion to dismiss the complaint.
The Fourth Department unanimously affirmed as plaintiff was not exposed to an elevation-related hazard of the type contemplated by the statute. The Court noted plaintiff testified that either of the A-frame ladders that had been provided for his use probably could have straddled the rock, but he thought that a ladder was not necessary. Thus, plaintiff was not “obliged to work at an elevation”, citing Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]).
PRACTICE POINT: The plaintiff, working at eye level, choose to step up on a rock, but it was ot necessary to do his job, and there were ladders there for him to use had he so chosen. This is simply not the type of elevation related injury the statute is designed to prevent.
The Fourth Department affirmed dismissal of this claim predicated upon alleged violations of Industrial Code regulations 1.7(d), 1.7(e)(1) and (2), 3.3(b)(5), 3.3(l), and 5.2 because the rock was not a “scaffold” for purposes of 5.2, and 1.7 is inapplicable to the facts as plaintiff did not allege that the rock was slippery or that he tripped on the rock. Further, he was not engaged in “demolition work”, and thus the rock is not “accumulated debris or piled materials” under 3.3.
Salerno v Diocese of Buffalo, NY
May 4, 2018
Appellate Division, Fourth Department
As part of his work, plaintiff was ordered to operate a “Bobcat skid-loader”, which had a safety bar that lowered onto the operators lap. When plaintiff raised the safety bar to exit the machine, the safety bar allegedly fell and struck him. The trial court granted defendants’ motion seeking dismissal of the Labor Law §§ 240(1), 200 and common-law negligence claims.
The Fourth Department affirmed as plaintiff was not injured as the result of any “physically significant elevation differential”.
PRACTICE POINT: The safety bar which prevents the plaintiff from exiting the skid steer while it is running falling into the lap of the plaintiff it is not a violation of the labor law, logic has once again prevailed.
The Fourth Department held that the trial court properly denied defendants’ motion to dismiss the claim predicated on Industrial Code regulation 9.2(a) because there are issues of fact whether plaintiff’s employer had actual notice of a structure defect or unsafe condition regarding the safety bar. However, the Court reversed the trial court and reinstated the claim based on an alleged violation of 1.5(c)(3 as that regulation is sufficiently specific to support such a claim.
LABOR LAW § 241(6) REGULATIONS; SPECIFIC OR GENERAL (MAS)
|
12 NYCRR § 23-1.12 – Protection in Construction, Demolition and Excavation Operations; General Provisions; Guarding of power-driven machinery; Power driven saws. |
Regulation § 1.12(c)(2), requires that power-driven saws other than portable saws be equipped with guards that cover saw blade so as to prevent contact with teeth, is sufficiently specific to support a Labor Law § 241(6) claim. |
Glab v 110-118 Riverside Tenants Corp, 262 AD2d 604, 691 NYS2d 903 (2d Dept 1999); Bajor v 75 East End Owners, Inc., 89 AD3d 458, 932 NYS2d 40 (1st Dept 2011); Ortega-Estrada v 215-219 West 145th Street, LLC, 118 AD3d 614, 938 NYS2d 845 (1st Dept 2014); Alameda-Cabrera v Nobel Elec. Contracting Co., Inc., 117 AD3d 484, 985 NYS2d 497 (1st Dept 2014); Sheng Hai Tong v K and K 7619, Inc., 144 AD3d 887, 41 NYS3d 266 (2d Dept 2016); |
Glab held Δs presented unrebutted evidence sufficient to show compliance with reg. and thus π’s complaint was dismissed. Bajor held π entitled to summary judgment by demonstrating Δ violated reg as there is evidence π was cutting a six to seven foot length of wood when he was injured because he was engaged in ripping i.e. cutting with the grain. Ortega-Estrada held reg. applicable where π injured while using table saw not equipped with blade guard. Alameda-Cabrera held reg. potentially applicable to injuries that occurred following temporary power outage because π’s hand and/or wood he was holding moved & drew his hand under unguarded miter saw. Sheng Hai Tong held reg. furnished a basis for liability where π allegedly severed thumb cutting plastic tile floor on a portable circular saw being used as a make-shift saw. |
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