Labor Law Pointers - Volume XI, No. 9

Volume XI, No. 9 Wednesday, August 3, 2022
 Note from David R. Adams:
Do you have a situation?  We love situations.  Give us a call, send an email, drop by; we truly enjoy solving complex Labor Law and Risk Transfer issues.    It’s August in Buffalo, and hot and humid; but not to the degree so much of the country has been experiencing.  Having a Great Lake as a neighbor keeps our weather more moderate.   Not that many cases this month, only nine from the Appellate Divisions and none from the Court of Appeals.  There is one case I really want to discuss, however: Shantz v Barry Steel.  The plaintiff was driving a lift off a truck bed onto a ramp.  As the plaintiff drove the lift down the ramp and through a door, the top of the door frame struck the plaintiff.  Note that the lift was not rolling down the ramp, but rather was only able to move while the plaintiff continued to push the joystick forward.  Thus, the Court held the injury was not caused by the effects of gravity, but by a workplace elevation differential.  This is Runner v NYSE taken to the extreme, in my opinion.  In Runner, though the court discussed the elevation differential as it related to the effects of gravity, here gravity was not a factor at all, but rather the injury was caused by the drive motors of the lift propelling it forward.  In Runner, at least, it was the effect of gravity on the spool of wire that applied the force which caused the injury to the plaintiff.   Now for the part that everyone likes, the photos.  Here the plaintiff, a painter, worked for a company hired to paint the stairwell of an apartment building.  When he arrived with his ladders and scaffolding in the truck, he found that none of them would fit through the doorway into the stairs.  So, he took the tallest ladder that would fit and a large piece of wood to balance the ladder and started painting.  He had been trained never to use a ladder that was not all the way open and locked, with all four feet on the ground, and he admitted that at his depo.  When the piece of wood moves, and plaintiff falls, does he have a § 240(1) case?     Plaintiff will be able to establish a prima facie case.  He is an appropriate plaintiff, a person so employed.  The building owner is a valid defendant. The project, painting, is an enumerated task, and the injury was caused by a fall.  The defendant will then argue for a sole proximate cause defense.  The plaintiff was provided with an appropriate safety device, the scaffold, which was available, on site, in his truck.  He was directed not to use the A-Frame ladder, unless it was fully open and locked, with all four feet on the ground, which he did; thus, misusing the safety device.  The plaintiff’s victory on § 240(1) stems from the fact that his decision to misuse the safety device was for a good reason.  First, the scaffold would not fit into the area and thus, he was forced to use the A-Frame ladder and to do the job even though not all four feet could be on the ground.  Argument could be made, as well, that the scaffold was not the appropriate safety device as it could not be moved to the necessary location.  Summary judgment for the plaintiff.   In our second offering this month, we have a worker who just finished installing a new chimney for a restaurant’s wood burning stove.  He decided that he was so proud of the way that he and his partner had set the ladders and plank, that he would pose for his friend and partner to take his picture, likely to go on the company website.  As he posed, he moved a little and the plank shifted, causing him to fall.      Prima facie case for the plaintiff.  He is a person so employed, he can sue the property owner, the job was clearly construction or alteration, and the fall from a height caused the injury.  Sole proximate cause defense will also fail.  Recall that it must be the plaintiff who is the SOLE proximate cause. Here, it was both the plaintiff and a co-worker who set up the ladder and plank fiasco that eventually caused his injuries.  Unfortunately, as with all § 240(1) claims, the plaintiff culpable conduct of trying to pose for the camera will not diminish the award to the plaintiff.   In our third photo of the month, we have a plaintiff who is trying to repair the mast of her sailboat.  As she is afraid to climb the mast, she asks the marina employees to help her.  As they already have a powerboat on the forks of the lull, they offer to hoist her up to repair the damaged shroud, and she thanks them and gets on the powerboat.  It is only when they have lifted her up, sitting on the bow of the powerboat, that she figures out that she is afraid of this as well.  But, the operator of the lull can’t hear her yelling over the sound of the motor.  No sooner is she close to the mast then she tries to reach out and grab it and falls to the deck.  §240(1) case?     Finally, a case that the plaintiff does not win.  Here the plaintiff, trying to repair her own boat, is not a person so employed and thus, not a valid plaintiff; so no § 240(1) case.  The interesting point to learn here is that, if she had been hired to do the work, it would have been a § 240(1) case, as a boat is, in fact, a structure within the meaning of the statute, as it is composed of component parts.   That is it for this month, hope you all have a great remainder of the summer. Please feel free to reach out to us with any questions Labor Law or Risk-Transfer related. 
 
David
  David R. Adams Hurwitz Fine P.C. The Liberty Building 424 Main Street, Suite 1300 Buffalo, New York 14202 Phone:  716.849.8900 Fax:  716.855.0874 Email:  [email protected] HF Website:  www.hurwitzfine.com
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July 6, 2022
Appellate Division, Second Department
Plaintiff, an employee of Nivelo, was performing framing work on a building and was allegedly injured when he stepped on an unsecured wooden beam, which flipped over and fell out from underneath him, causing him to fall 15 feet to the floor. HG Housing, as nominee for the Highland Green, owned the property. D & F Construction was the general contractor, who entered into a subcontract with South Ocean, who subcontracted the injury-producing work to Nivelo.  While plaintiff’s motion for summary judgment under Labor Law § 240(1) was pending, Nivelo interposed an answer to the third-party complaint and the parties stipulated that the deposition of Nivelo would be held by a date certain. Defendants opposed plaintiff's motion on the grounds that it was premature because a representative of Nivelo had not yet been deposed. The trial court denied plaintiff's motion.   Labor Law § 240(1) (MAS) The Second Department reversed the trial court and granted plaintiff’s motion because his deposition testimony and an affidavit of his coworker who witnessed the incident established that defendants failed to provide plaintiff with adequate safety devices, and that this failure was a proximate cause of the incident. Defendants’ contention that the motion was premature because Nivelo’s representative might yield evidence that plaintiff was supplied with a safety harness and that his alleged failure to use it was the sole proximate cause of incident, was rejected by the Court as speculative. Defendants’ assertion was based on testimony from someone who did not witness plaintiff’s incident, had not been at the construction site for two or three weeks prior to the incident, and did not give any indication as to when he observed Nivelo workers wearing safety harnesses. Additionally, plaintiff’s coworker, who also was a Nivelo employee and who witnessed the incident, averred that neither he nor plaintiff was provided with a safety harness or any fall protection.   The Court also found that South Ocean was a statutory agent of the owner or general contractor since it had the authority to supervise and control the injury-producing work. Once South Ocean became such an agent, it could not escape liability by delegating its work to another entity.   PRACTICE POINT: A party who contends that a summary judgment motion is premature must demonstrate either (1) that discovery might lead to relevant evidence and said party has been diligent in pursuing that discovery or (2) the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the moving party. If, as here, the party opposing the motion had a reasonable opportunity to pursue the discovery and was not diligent in doing so, then courts will find that the motion is not premature.    
Mogrovejo v HG Hous. Dev. Fund Co., Inc. July 6, 2022 Appellate Division, Second Department
  Same facts as the first case, but the trial court denied HG Housing’s, D & F Development’s, Highland Green’s, and D & F Construction’s (collectively “defendants”) motions for summary judgment on the contractual indemnification crossclaim of Highland Green, and D & F Construction, against South Ocean.   Indemnity Issues in Labor Law (BFM) The Second Depart reversed the trial court, finding that HG Housing, Highland Green, D & F Development, and D & F Construction were entitled to contractual indemnification from South Ocean. The subject indemnification provision contained savings language, i.e., “to the fullest extent permitted by law,” and applied to claims arising “in whole or in part and in any manner from the act, failure to [sic] omission breach or default by [South Ocean] and/or officers, directors, agents, employees, sub-subcontractors and suppliers in connection with the performance of this [s]ubcontract.”  Thus, contrary to South Ocean's contention, the indemnification provision did not, by its terms, limit indemnification only to claims arising out of South Ocean's negligence in the performance of the work.  The Court further held that defendants met their initial burden of establishing their entitlement to contractual indemnification and demonstrated that they did not have the authority to supervise or control the performance of plaintiff's work and, therefore, were free from negligence.     
Rodriguez v Waterfront Plaza, LLC July 6, 2022 Appellate Division, Second Department
  Plaintiff’s employer, Jara, was hired in connection with a construction project on property owned by Waterfront. ZNKO served as the general contractor on the project. Plaintiff was assigned to transport 20-foot-long metal beams from the ground level to the third floor of the partially constructed building. To accomplish this, plaintiff stood the beam up vertically while his partner secured the other end of the beam with his foot. A rope was then tied around the beam, and the beam was pulled onto the third floor. The only device supplied for the task was this rope. Plaintiff testified at his deposition that as he was getting ready to raise one of the beams, his partner asked him to move backwards, and he fell into an unprotected, 15-foot-deep opening in the concrete, which led to the basement. He was able to hold onto the sides of the opening so that he did not fall to the ground below, but he let go of the beam, which hit him in the head. The trial court granted plaintiff's motion for summary judgment on his Labor Law § 240(1) claim against Waterfront and denied Waterfront’s motion for summary judgment on its crossclaim against ZNKO for contractual indemnification. Labor Law § 240(1) (MAS) The Second Department affirmed the trial court’s decision because plaintiff’s incident was proximately caused by the failure to provide appropriate safety devices to protect against gravity-related hazards posed by the opening in the floor and the unsecured metal beam. The Court also held that plaintiff consistently described the manner in which the incident occurred during his deposition and in his affidavit that he submitted in support of his motion.   PRACTICE POINT: Falling object liability under the statute is not limited to cases in which the falling object is in the process of being hoisted or secured, but also where, as here, the injured worker demonstrates that, at the time the object fell, it required securing for purposes of the undertaking. Further, where a violation of the statute is a proximate cause of an incident, the worker’s conduct cannot be deemed solely to blame for it.   Indemnity Issues in Labor Law (BFM) The Second Department affirmed the trial court’s denial of Waterfront’s crossclaim for contractual indemnification against ZNKO because Waterfront failed to eliminate issues of fact as to whether it was free from negligence with respect to plaintiff's incident, as is required to obtain contractual indemnification. The evidence demonstrated that plaintiff's work was being supervised by Waterfront on the day of the incident.  Furthermore, as ZNKO is not an insurer, its duty to defend is no broader than its duty to indemnify. As such, the Court determined that since Waterfront was not entitled to indemnification at that time, it also was not entitled to a defense.    
Johnsen v State of New York July 13, 2022 Appellate Division, Second Department
  Claimant was in the basket of a boom lift working on the underside of the Gowanus Expressway, when a car carrier tractor trailer struck the basket. The basket allegedly ricocheted back and forth, and claimant was injured. The Court of Claims granted defendant’s motion for summary judgment dismissing the claim.   Labor Law § 240(1) (MAS) The Second Department reversed the Court of Claims and denied defendant’s motion under Labor Law 240(1) claim because the fact that plaintiff did not actually fall from the basket is irrelevant as long as the harm directly flowed from the application of the force of gravity to her person.   PRACTICE POINT: The fact that the injured worker did not actually fall from the boom lift is irrelevant, as long as the harm directly flowed from the application of the force of gravity to his or her person.   Labor Law § 241(6) (TPW) The Second Department held that Court of Claims properly granted that branch of the defendant's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action.  While the claimant alleged that the defendant was liable pursuant to Labor Law § 241(6) predicated on a violation of 12 NYCRR 23-1.29(a), the defendant established, prima facie, that at the time of the accident, it had complied with the requirement that the "work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area".  In opposition, the claimant failed to raise a triable issue of fact.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department also reversed the decision granting the defendant's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action. It held the defendant failed to demonstrate that it lacked the authority to control the manner in which the work zone traffic control devices were placed, so as to render it potentially liable for the failure to provide a safe worksite.  
Ennis v Noble Constr. Group, LLC July 27, 2022 Appellate Division, Second Department
  Plaintiff was allegedly injured while attempting to avoid a fall from a ladder. At the time of the alleged incident, Atlantic Pacific owned the property, and Noble Construction was the general contractor. The trial court denied plaintiff's motion for summary judgment on the Labor Law § 240(1) claim but granted that portion of plaintiff's motion under Labor Law § 241(6) predicated on alleged violations of Industrial Code (12 NYCRR) 23-1.7(d) and 23-1.21(b)(4).   Labor Law § 240(1) (MAS) The Second Department reversed the trial court and granted plaintiff’s motion because his testimony established that the statute was violated, and that said violation was a proximate cause of his injuries.   PRACTICE POINT: The statute may apply where, as here, a worker is injured as a result of his or her attempt to prevent themself from falling.   Labor Law § 241(6) (TPW) The Second Department affirmed summary judgement to plaintiff on the Labor Law § 241(6) claim predicated upon alleged violations of 12 NYCRR 23-1.7(d) and 23-1.21(b)(4)(ii). Section 12 NYCRR 23-1.7(d) provides, in pertinent part, that "[e]mployers shall not suffer or permit any employee to use a floor, . . . platform or other elevated working surface which is in a slippery condition . . . [W]ater . . . and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Section 12 NYCRR 23-1.21(b)(4)(ii) provides, in pertinent part, that "[a]ll ladder footings shall be firm. Slippery surfaces . . . shall not be used as ladder footings."   The Court held that plaintiff successfully established that the wet concrete floor underneath his A-frame ladder was a slippery condition within the meaning of the regulations.    
Zong Wang Yang v City of New York July 27, 2022 Appellate Division, Second Department
  Plaintiff was injured in the course of his employment with A-Tech during the renovation of an 18-story building. The City of New York and BNYDC stipulated that, for the purposes of this action, the premises were owned by the City and managed by BNYDC pursuant to an agreement with the City. BNYDC hired Plaza as the general contractor, who subcontracted with EJ Electrical, who subcontracted with A-Tech to install a fire alarm and fire prevention system and with ZHN to build concrete masonry unit (CMU) walls enclosing a shaft created inside the building that extended from the second floor to the sixteenth floor. Plaintiff was allegedly injured when he stepped onto aluminum planks that lay across the unobstructed shaft opening on the sixteenth floor. The planks gave way and caused him to fall to a platform across the shaft on the fifteenth floor.    The trial court denied plaintiff’s motion for summary judgment on the Labor Law § 240(1) claim against the City, BNYDC, and Plaza. It also denied the cross-motion of ZHN for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it, and the third-party claims for indemnification and contribution against it. The trial court also granted Plaza’s cross-motion for summary judgment on its contractual indemnification against A-Tech.   Labor Law § 240(1) (MAS) The Second Department reversed the trial court and granted plaintiff’s motion because defendants failed to raise a triable issue of fact as to whether plaintiff’s actions, who was instructed by the A-Tech foreman and sub-foreman not to enter the shaft, were the sole proximate cause of the incident. The testimony from A-Tech and Plaza established that the shaft opening was not properly protected so as to prevent workplace accidents.   The Court also held that the City and A-Tech failed to establish that plaintiff’s failure to heed the instructions of A-Tech not to enter the shaft constituted the sole proximate cause of his injuries because an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a “safety device” in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe, and appropriate equipment.   PRACTICE POINT: A worker’s injury in an area of the work site where the worker was not supposed to be only amounts to comparative negligence, which is not a defense under the statute.   Labor Law § 200 and Common-Law Negligence (ESB) The Second Department affirmed denial of ZHN’s summary judgment motion as to Labor Law § 200 and common-law negligence. In this “hazardous condition case,” it held, summary judgment in favor of a subcontractor on a Labor Law § 200 or negligence claim is improper where the evidence raises a triable issue of fact as to whether the subcontractor's employee created an unreasonable risk of harm that was the proximate cause of plaintiff's injuries. In this case, ZHN failed to demonstrate that it did not create the hazardous condition, i.e., the improper placement of aluminum planks across the shaft, which planks were identical to the aluminum planks being used by ZHN during its work.   Indemnity Issues in Labor Law (BFM) The Second Department held that ZHN's contention that it was entitled to summary judgment dismissing the indemnification claim asserted against it, on the basis that plaintiff's injuries did not “arise out of” ZHN's work, was without merit.  As issues of fact existed as to whether ZHN owned the aluminum planks that spanned the shaft opening, the Court affirmed the trial court’s denial of that branch of ZHN's cross-motion which sought dismissal of the third-party contractual indemnity claim asserted against ZHN. The Court also held that ZHN was not entitled to dismissal of the third-party claim for common law indemnity because it failed to affirmatively demonstrate that it was free from negligence and due to the existence of issues of fact as to whether it owned, furnished, or placed the aluminum planks over the shaft into which plaintiff fell.    
Abdelhay v 1105 Group Prop. Mgt., LLC July 8, 2022 Appellate Division, Fourth Department
  Plaintiff allegedly was injured while performing electrical work on a construction project on defendant's property. Plaintiff's incident occurred when he fell off of an A-frame ladder after he rested his foot on a shelf in order to reach tape being passed to him through an electrical conduit and the shelf collapsed. The trial court denied plaintiff’s motion for partial summary judgment on his Labor Law 240(1) claim and denied in part defendant’s motion for summary judgment dismissing the complaint.   Labor Law § 240(1) (MAS) The Fourth Department affirmed denial of plaintiff’s motion because defendant raised an issue of fact whether plaintiff was the sole proximate cause of his injuries and in particular, whether an adequate safety device, i.e., an extension ladder, was “readily available at the work site and whether plaintiff knew that he was expected to use the extension ladder but for no good reason chose not to do so.” The Court also denied defendant’s appeal because their own submissions raised a triable issue of fact whether plaintiff was the sole proximate cause of the incident   PRACTICE POINT: A defendant asserting the sole proximate cause defense must establish: (1) plaintiff had an appropriate safety device, which was readily available to him or her; (2) plaintiff was instructed to use and/or knew he or she was expected to use it; (3) he or she failed to use or misused the safety device for no good reason; and (4) had the readily available safety device been properly used, then the injuries would not have occurred.    
Hann v S&J Morrell, Inc. July 8, 2022 Appellate Division, Fourth Department
  Plaintiff was employed as a framer by a subcontractor on a residential construction project of which defendant was the owner and general contractor and was allegedly injured when he fell while erecting an elevated exterior deck. The trial court granted plaintiff's cross-motion for summary judgment on the Labor Law § 240 (1) claim.   Labor Law § 240(1) (MAS) The Fourth Department reversed the trial court and held that defendant raised an issue of fact whether the alleged incident – a fall resulting from the collapse or dislodging of the deck – occurred at all. Defendant’s assertion is based on its supervisor’s firsthand observations of an intact deck on the morning after the alleged incident, coupled with the testimony of the foreman, which calls into question whether a repair of the deck could have been made before the supervisor’s inspection, from which a factfinder could permissibly draw the inference that the alleged collapse did not occur at all.   PRACTICE POINT: Where, as here, defendant’s submissions raise questions of fact with respect to how the purported incident occurred and whether plaintiff’s injuries were proximately caused by defendant’s alleged violation of the statute, the injured worker is not entitled to summary judgment.    
Shantz v Barry Steel Fabrication, Inc. July 8, 2022 Appellate Division, Fourth Department
  Plaintiff was injured while working on a construction project when a scissors lift, which he was unloading from a truck bed using an inclined ramp, pinned him between the top of the lift and the upper part of the loading dock's door frame. The trial court granted in part and denied in part plaintiff’s motion seeking partial summary judgment and granted in part and denied in part defendant’s cross-motion dismissing the complaint.   Labor Law § 240(1) (MAS) The Fourth Department reversed the trial court and denied plaintiff’s motion but affirmed denial of defendants’ motion. The Court denied defendants’ motion because they failed to establish as a matter of law that plaintiff’s injuries were not the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Defendants also failed to establish as a matter of law that no safety device of the kind enumerated in the statute would have prevented the incident, and although the elevation differential was only one or two feet, in light of the weight of the scissors lift, as well as the potential harm that it could cause, it cannot be said that the elevation differential was de minimus.   However, the Court also held that plaintiff was not entitled to summary judgment because plaintiff’s evidence raised a triable issue of fact whether plaintiff’s conduct, i.e., his improper operation of the lift, was the sole proximate cause of the incident.   PRACTICE POINT: In determining whether an injured worker is entitled to recover under the statute, the inquiry does not depend on the precise characterization of the device employed or on whether the injury resulted from a fall, either of the worker or of an object onto the worker. Rather, the single decisive question is whether the worker’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential.   Labor Law § 241(6) (TPW) The Fourth Department affirmed the trial court’s decision to grant summary judgment in favor of defendants on the Labor Law § 241 (6) claim. Specifically, the Court affirmed 12 NYCRR § 23-9.2 (b) was not sufficiently specific to support a claim under the Labor Law. Further, although 12 NYCRR § 23-9.8 (e) was sufficiently specific, even assuming, arguendo, that the regulation applied to scissors lifts based on “the manner in which the equipment is used rather than its name or label”, defendants established that the incident did not occur as the result of the lift "upsetting" as required by the section and therefore, met their burden establishing that the regulation was not applicable to the specific facts of this case.    
Sheley v Kingsfort Bldrs., Inc. July 8, 2022 Appellate Division, Fourth Department
  Plaintiff was injured while using a nail gun to perform framing work on a residential construction project, alleging that defendant, the general contractor on the work site, violated Labor Law § 241 (6) by failing to provide him with adequate eye protection equipment as required by 12 NYCRR 23-1.8 (a). The trial court denied in part defendant’s motion for summary judgment.    Labor Law § 241(6) (TPW) The Fourth Department unanimously affirmed the trial court’s denial of defendant’s motion for summary judgment. Plaintiff alleged defendant violated Labor Law § 241 (6) by failing to provide adequate eye protection equipment as required by 12 NYCRR 23-1.8 (a). Section 12 NYCRR 23-1.8 (a) requires not only that "[a]pproved eye protection equipment . . . be provided for" workers engaged in operations that may endanger their eyes, but also that the equipment actually "be used by all [such] persons.”   Although there was no dispute that safety glasses were present on the work site on the date of the incident, the deposition testimony submitted by defendant in support of its own motion raised questions of fact whether defendant complied with its obligation to ensure use of the safety glasses. Defendant failed to submit evidence establishing that it specifically instructed plaintiff to use safety glasses on the work site. Because defendant failed to meet its initial burden on the motion, denial of the motion was required regardless of the sufficiency of the opposing papers.  
 New York Industrial Code Regulations (EDA)
12 NYCRR 23-1.24(a)(1)(ii)Work on Roofs, General Requirements, Roofing Brackets, Roofing bracket construction. Roofing brackets shall be constructed and installed to fit the pitch of the roof and when in use shall provide a level working platform. Regulation § 23–1.24(a)(1)(ii), requiring that roofing brackets “be constructed and installed to fit the pitch of the roof and when in use shall provide a level working platform”, is likely sufficiently specific to support a Labor Law § 241(6) claim.    
Labor Law Pointers   Editor David R. Adams Associate Editor Eric S. Bernhardt Associate Editor Brian F. Mark Associate Editor Timothy P. Welch Associate Editor Marc A. Schulz Associate Editor Eric D. Andrew Labor Law Team
David R. Adams, Team Leader [email protected]  
Dan D. Kohane [email protected]                                                        Michael F. Perley [email protected] Eric S. Bernhardt [email protected] Marc A. Schulz [email protected] Jesse L. Siegel [email protected]
Steven E. Peiper [email protected] Brian F. Mark [email protected] Timothy P. Welch [email protected] Eric D. Andrew [email protected]  
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