|
|
Volume XII, No. 12
Wednesday, November 1, 2023
|
|
 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.
Drove to work this morning after having scraped the ice off the windows; welcome to November in Buffalo.
We have some good cases for you this month, and we provide an opportunity to learn something. But, we do realize that many of you are here for the videos and photos; and who could blame you. In addition, though, please remember that we always are available to answer questions and to provide any training you may need or want. Having said that, with no further ado, here are the videos:
In our first video of the month, the owner of a home intends to rent it out, but first he wants to replace the roof over the front porch. To do that, he enlists the help of his neighbor, who gladly offers to help, and who happens to own a chain saw. Together, they start to cut the old roof down, so the contractors he hired can build a new one. After cutting down the first half, our fearless demo team has a few beers with lunch and then moves on to take down the second half when the below occurred. I particularly appreciate the porch dismount. § 240(1)?
Well, we have a defendant who owns a structure, which is having construction work done on it for commercial purposes. § 240(1) applies; no homeowner exemption. We have a plaintiff on a ladder, which was clearly not properly placed, and that caused the plaintiff to sustain injury, as a result of an elevation differential and the effects of gravity. § 240(1) applies to that as well. However, we also have a plaintiff, who has volunteered to help the property owner, and thus, is not a person so employed, and not afforded the protections of § 240(1). Summary judgment for the defendant.
In our next case, we have two characters who were in the process of delivering roofing materials to a building as a part of the installation of a new roof, when a delivery truck showed up to deliver a couch to the ninth floor of the building. The delivery team, tired and mad at each other over the repeated requests to pivot on their prior delivery, offered the crane operator and helpers $100 to lift the couch to the window, to deliver the couch.
Just as the couch (and the workers holding the couch) were about to have the couch safely delivered, a man taking a Frogger video game across the street distracted the crane operator, causing him to bounce the crane, and caused the workers to drop the couch off the platform, and onto a roofing worker on the sidewalk below.
§240(1) case?
The plaintiff would qualify as a person so-employed, as he was there to do roofing work. The accident clearly involved an elevation differential and the force of gravity in causing the injury. The problem for the plaintiff is that the task being undertaken at the time of the accident had nothing to do with the roofing job. So, there is no viable § 240(1) claim.
In our third offering, the plaintiff was sent to weld support beams in a parking garage, to allow the installation of a new video and light system. He was sent with a truck that contained four ladders, all with yo-yos and harnesses of sufficient length to easily reach the area where the plaintiff needed to work. The plaintiff, an OSHA-30 certificate holder, needed to finish quickly to get to lunch with his girlfriend and decided to climb up and weld the support without using the ladder. Shockingly he fell and sustained injury. § 240(1)?
The plaintiff has a prima facie case of § 240(1). He is a person so employed. The owner or the property is a valid defendant. The overall job, welding beams, is a covered activity, and the injury was caused by an elevation differential and the application of the force of gravity. Defendant will argue that the plaintiff was the sole proximate cause of his own injury. The plaintiff was supplied with an appropriate safety device: the ladder (defendant will want an expert here to support that claim); the appropriate safety device was available to the plaintiff on the truck; the plaintiff had been instructed to always use an appropriate ladder and fall protection (his OSHA training); and he failed to use the appropriate and available safety device. In addition, his failure to use the safety device was not based on good cause. Summary judgment should be awarded to the defendant.
In our final photo for the month, the plaintiff forgot his ladder and built a tower – not quite the tower of Babel, but close – to reach the area where he needed to work. Plaintiff was a painter, there on behalf of his employer, who was hired by the building owner to paint the ceiling in the kitchen of this retail space. Plaintiff was very careful to use a strap to hold the entire structure together and to make it incapable of movement. As to the term “incapable of movement,” those words may not mean what he thought they meant, as the entire structure shifted as he climbed up the final step ladder, causing the plaintiff to fall to the ground sustaining injury. § 240(1)?
We have a valid plaintiff, a valid defendant, the project involves painting, an enumerated and protected activity, and the plaintiff was injured by an elevation differential. There is no opportunity for a sole proximate cause defense as the plaintiff was not supplied with an appropriate safety device. Summary judgment for the plaintiff.
That’s it for this month. As always, please feel free to reach out to us with any questions Labor Law or Risk-Transfer related, we do so love them and the challenge of helping to find a solution.
-David
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]
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.
Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
|
|
|
|
Plaintiff was working on a pest control project, which entailed attaching pigeon netting to anchors drilled into the façade of the building, and setting up spikes on the building's ledges and windowsills. He also had to replace a couple of the anchors while installing the netting. The trial court denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted Premier Company’s and Outsect’s cross-motions for summary judgment dismissing the Labor Law §§ 240(1), 241(6), and 200 claims.
 Labor Law § 240(1) (MAS)
The First Department affirmed dismissal of the Labor Law § 240(1) claim because plaintiff’s work did not involve a “significant physical change to the configuration or composition of the building or structure” so as to constitute an “alteration” under the statute. His reaffixing some of the anchors to reattach dislodged netting at the time of injury also did not constitute “repair” work, as he was not repairing a part of a building or structure.
PRACTICE POINT: For work to qualify as “altering” within the meaning of the statute, it must not be simple, routine, cosmetic, or decorative, and it must effect “a significant physical change to the configuration or composition of the building or structure”, including (but not necessarily permanently) changing the way an important component of the building functions. Here, plaintiff’s pest control work is not the type of alteration or repair work covered under the Labor Law.
 Labor Law § 241(6) (TPW)
Because plaintiff was not engaged in construction work, the First Department also affirmed the trial court’s dismissal of the Labor Law § 241(6) claim.
 Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law § 200 claim as against Premier but modified the decision by denying Outsect’s motion on that claim. It held Outsect failed to establish that it did not have the ability to supervise and or control plaintiff’s work. It did not matter that plaintiff had been independently retained to assist with the job because, having been permitted or suffered to perform the work, plaintiff fell within the class of people protected by the Labor Law. As for Premier, the Court found there was no evidence that it supervised on controlled the injury-producing work.
Plaintiff was injured when he fell into an uncovered hole because he did not see it as he pushed his cart in front of him. The trial court (1) denied plaintiffs' motion for partial summary judgment on the Labor Law § 241 (6) claim, predicated on an alleged violation of the Industrial Code (12 NYCRR) § 23-1.7 (e) (1), against Tower, Retail (together with Tower, WFP defendants), Time, Inc., and Turner (collectively with defendant/third-party plaintiff Security Control Integrators, Inc., defendants), and their Labor Law § 200 and common-law negligence claims, as against Turner; (2) (a) denied defendants' separate motion for summary judgment dismissing the Labor Law § 241 (6) claim predicated on 12 NYCRR 23-1.7 (e) (1), and, as against Turner, the Labor Law § 200 and common-law negligence claims, but (b) granted the motion for summary judgment dismissing, the Labor Law § 241 (6) claim predicated on § 23-1.7 (e) (2); (3) denied defendants' separate motion for summary judgment on Turner's third-party complaint against third-party defendant Allran; and (4) denied Allran's separate motion for summary judgment dismissing the third-party complaint.
Labor Law § 241(6) (TPW)
The First Department affirmed the trial court’s decision denying summary judgment to all parties on the Labor Law § 241 (6) claim. Insofar as the claim was predicated on 12 NYCRR 23-1.7 (e) (1), the Court found issues of fact as to whether the area in which the accident occurred could properly be characterized as a passageway within the meaning of the regulation. Further, the § 241 (6) claim was also properly dismissed insofar as predicated on 12 NYCRR 23-1.7 (e) (2) as the record did not support the conclusion that plaintiff fell into the hole because of an accumulation of debris; rather, he fell into it because he did not see it as he pushed his cart in front of him, and the hole was uncovered.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of all motions as to Labor Law § 200 and common-law negligence. In this “dangerous condition” case, it held that plaintiffs did not establish that the hole into which the injured plaintiff stepped was uncovered for a sufficient length of time to permit Turner's employees to discover and remedy it (i.e. plaintiff did not prove constructive notice). Meanwhile, defendants submitted no evidence of the cleaning schedule for the site of the accident or when the site had last been inspected before the accident as part of their initial moving papers. To the extent defendants submitted Turner's daily logs in reply to plaintiffs’ opposition, this was new evidence that could not be considered in support of defendants’ prima facie burden.
 Indemnity Issues in Labor Law (PCSM)
The First Department upheld the trial court’s decision denying all parties summary judgment on the third-party claims against Allran, and denying summary judgment in favor of Allran. The trial court found questions of fact remained as to whether the hole that plaintiff allegedly tripped over was a part of the floor’s cell system and, if so, whether securing the hole fell within the scope of Allran’s work, thus triggering the indemnification provision in favor of Turner. The First Department held that these issues of fact precluded summary judgment, in favor of any party, on the claims for contractual and common-law indemnification and contribution. As to Turner’s breach of contract claims, the Court held that Turner failed to establish its entitlement to summary judgment as the evidence submitted was not in admissible form. In affirming the trial court’s denial of Allran’s summary judgment motion, the Court found Allran’s argument that the claim should be dismissed for lack of damages to be unavailing, since it had not yet been determined whether Allran's alleged failure to procure the agreed-upon insurance caused Turner any losses.
Plaintiff fell from an A-frame ladder while engaged in outside painting work. His expert report opined that the 1.8% slope of the patio floor was a defect that created an imbalance that caused plaintiff's fall. The trial court denied defendants’ motion for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence claims.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed denial of defendant’s motion as to Labor Law § 200 and common-law negligence. In this hazardous condition case, it held that Plaintiff's expert's report sufficiently raised a question of fact as to whether the 1.8% slope of the patio floor was a defect that created an imbalance that caused plaintiff's fall from an A-frame ladder while engaged in outside painting work. Further, plaintiff's affidavit raised a question of fact as to whether defendants were responsible for creating the alleged defect. Accordingly, summary judgment properly was denied.
Plaintiff was injured when he slipped and fell on a shelf that detached from a collapsed shelving unit while working for JP Morgan in an office building owned by NYP. CBRE managed the building and ABM provided janitorial services at the building. The trial court denied ABM’s motion for summary judgment and granted NYP’s and CBRE’s motion for summary judgment dismissing the complaint against them.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed the trial court’s decision. Regarding ABM, it held that denial of its motion as to Labor Law § 200 and common-law negligence was proper. It found a question of fact as to whether ABM's porter launched an instrument of harm by pulling on a shelf in the shelving unit just before or while it collapsed. As for CBRE, the Court found the evidence established that CBRE did not assemble the shelving unit that collapsed and thus, CBRE did not launch an instrument of harm. Further, ABM was an independent contractor rather than an agent of CBRE or NYP. At most, that NYP and CBRE retained general supervisory powers over ABM, which are insufficient to support vicarious liability. Finally, as to NYP, the evidence established that it was an out-of-possession landlord that did not have any relevant contractual obligation to repair or maintain the premises. Therefore, even if plaintiff could demonstrate that NYP had prior notice of the alleged defective condition, an out of possession landlord may not be held liable even if it had notice of the defective condition prior to the accident.
Plaintiff was directed to perform taping work around lights on the ceiling of a garage. He and his coworker were told to retrieve pieces of scaffold stored a block away from their location on this construction site and assemble it for the work. The available scaffold parts they retrieved did not fit one another and were “mismatched.” Plaintiff complained of the defective scaffold and was told, in effect, to work with what he had. Additionally, he was not provided with any additional safety equipment to perform the height-related task he was assigned to complete. While attempting to work on the scaffold, it suddenly collapsed, causing him to fall. The trial court denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court and granted summary judgment to plaintiff on his Labor Law § 240(1) claim, finding that his evidence established that a safety device collapsed. In opposition, defendants failed to include an admissible affidavit of plaintiff’s onsite supervisor and the only defense witness with firsthand knowledge of any purported discussions with plaintiff regarding the safety of the scaffold prior to the accident. Because defendants’ submissions in opposition relied entirely on the onsite supervisor’s inadmissible hearsay statements, the Court held they were insufficient to raise a triable issue of fact as to whether plaintiff’s conduct – namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his incident.
PRACTICE POINT: While hearsay statements may be offered in opposition to a motion for summary judgment, such statements cannot be the only evidence used to oppose the motion. Conversely, inadmissible hearsay statements may be considered in opposition to a motion for summary judgment, when offered with admissible evidence in support of the same argument. In this case, the hearsay statements of plaintiff’s onsite supervisor, that plaintiff allegedly was instructed not to use the scaffold, and that he had disregarded that instruction, were, by themselves, insufficient to defeat plaintiff’s motion.
Plaintiff fell from a scaffold, which was supplied to him for the work he was performing. The scaffold lacked guardrails and no other protective devices were provided to him. The trial court denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim against defendant 94 E. 208 Street Partners LLC.
Labor Law § 240(1) (MAS)
The First Department unanimously reversed the trial court’s decision and granted plaintiff’s motion for partial summary judgment as to liability under Labor Law § 240(1). The Court rejected defendants’ argument that the motion was premature because defendants failed to show what discovery was needed or what additional discovery could be expected to reveal.
PRACTICE POINT: In cases where no depositions have occurred, summary judgment can still be awarded. A party opposing such a motion must show that discovery might lead to facts that would support its opposition to the motion and that facts essential to its opposition were within the other party’s exclusive knowledge. The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion.
Plaintiff was injured while working at a construction site where defendants were constructing a two-family home. The trial court granted Aretha Franklin and James Emmanuel, Jr.'s motion for summary judgment dismissing the complaint against them.
Labor Law § 240(1) (MAS)
The First Department unanimously affirmed the trial court’s decision based on the homeowner’s exemption because defendants showed that they intended to reside in one of the units; therefore, the property was not to be used solely for commercial purposes, and they did not direct or control plaintiff’s injury-producing work.
PRACTICE POINT: The homeowner’s exemption to liability under Labor Law §§ 240(1) and 241(6) applies to owners of one and two-family dwellings who contract for but do not direct or control the work. Here, defendants were entitled to a little R-E-S-P-E-C-T because they demonstrated that the property was not to be used solely for commercial purposes.
Labor Law § 200 and Common-Law Negligence (ESB)
The First Department affirmed dismissal of the Labor Law 200 and common-law negligence claims, as there was no evidence that defendants exercised any supervisory control over the injury-producing work.
Plaintiff was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of a building under construction. He heard workers stripping wood on the floors above him at the time of the accident and submitted photographs depicting a large hole in the safety netting that served as overhead protection. The trial court denied defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' motion for summary judgment on the Labor Law § 240(1) claim.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted summary judgment to plaintiff because his evidence was sufficient to establish that his accident was the result of a violation of § 240 and that the violation was a proximate cause of his injuries. In opposition, the Court held that defendants failed to provide any version of the accident under which they could not be held liable, rendering summary judgment appropriate.
PRACTICE POINT: Falling object cases are not dependent on whether the injured worker observed the object that struck them. Nor is the injured worker required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries. In this case, summary judgment was properly awarded because the evidence showed plaintiff was struck on the head, he heard workers working above him at the time of his accident, and the safety netting provided was insufficient to serve as proper overhead protection.
Plaintiff slipped on mud and grime on the third rung of a jobsite ladder, fell, and was injured as he attempted to descend from the upper floors of the building where he worked to reach ground level. The trial court denied plaintiff’s motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims and denied defendants/third-party plaintiffs summary judgment on its contractual indemnification claim.
Labor Law § 240(1) (MAS)
The First Department reversed the trial court and granted summary judgment to plaintiff because his evidence was sufficient to establish that his accident was the result of a violation of § 240, and that the violation was a proximate cause of his injuries. In opposition, the Court rejected the attempts to raise an issue of fact via the C-3 report, which stated that plaintiff’s accident occurred while he was climbing down from the ladder and lost his balance on an uneven surface. The Court held the C-3 lacked probative value and failed to raise a triable issue as to whether plaintiff’s alleged misstep was the sole proximate cause of his injury, because there was no affidavit or deposition testimony from the C-3 author, or similar attestation from a records custodian, as to the allege authenticity of the statement taken from plaintiff. The Court also noted that defendants offered no excuse for relying on the C-3 in hearsay form, as opposed to presenting the information contained therein in admissible form.
The Court rejected the argument that deposition testimony from defendants’ general manager, that another ladder was available on the jobsite, which plaintiff could have utilized to alight from the upper floors, raised a triable issue of fact as to whether plaintiff was the sole proximate cause of his injury for using the less safe ladder.
PRACTICE POINT: A plaintiff is the sole proximate cause of his or her own injuries and a defendant has no liability under Labor Law § 240(1) when the injured worker: (1) had adequate safety devices; (2) knew both that the safety devices were available and that he or she was expected to use them, (3) chose for no good reason not to do so or misused the safety device, and (4) would not have been injured had he or she not made that choice. Because defendants here offered no evidence that plaintiff knew of the other ladder, or had been instructed to use that other ladder as opposed to the one he used, and that he chose to ignore his employer’s instructions, defendants could not rely on the sole proximate cause defense.
Indemnity Issues in Labor Law (PCSM)
Procida, the general contractor for the project, cross-moved for summary judgment on their contractual indemnification claim against Cosan, plaintiff’s employer. The trial court denied Procida’s motion. On appeal, the First Department found triable issues of fact as to whether Procida fulfilled its contractual obligations to maintain the subject ladder and the worksite in a safe condition; and whether Procida’s acts or omissions were the sole proximate cause of the plaintiff's injury. The Court also cited the lack of evidence to indicate that Cosan had any responsibility for, or control over, the ladder on which plaintiff slipped. Accordingly, the Court affirmed the trial court’s ruling, finding that Procida’s cross-motion for conditional summary judgment on their contractual indemnification claim was properly denied.
While performing work on defendants’ property, decedent fell while repairing a roof, sustained injuries, and subsequently passed away. The trial court denied defendants' motion for summary judgment dismissing the complaint based on the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) as plaintiff submitted evidence that defendants had rented the property prior to the accident and listed the property for sale following the accident.
Labor Law § 240(1) (MAS)
The Second Department affirmed the trial court’s finding that defendants failed to eliminate triable issues of fact as to whether they were entitled to the homeowner’s exemption under Labor Law §§ 240(1) and 241(6), including whether the premises had a commercial purpose and whether decedent’s injury-producing work related to a commercial purpose of the property.
PRACTICE POINT: Renovating a residence for resale or rent qualifies as work being performed for a commercial purpose. Where the property serves both residential and commercial purposes, a determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury. Here, defendants could not show that the property was not being used for a commercial purpose and that the injury-producing work was not related to the commercial purpose of the property.
Claimant was injured while working on a project to replace decks on the Tappan Zee Bridge. He was wheeling a generator when the generator's wheels encountered a loose short sheet, causing the generator to stop abruptly. As a result, claimant tripped, hitting his right shoulder against a truss on the bridge. The Court of Claims denied claimant's motion pursuant to CPLR 3025(b) for leave to amend the claim.
Labor Law § 241(6) (TPW)
The Second Department affirmed the decision of the Court of Claims, which denied the claimants' motion pursuant to CPLR 3025(b) for leave to amend the claim to add a Labor Law § 241(6) claim. The Court found that the Court of Claims exercised its discretion in denying claimants' motion, because the proposed amendments were palpably insufficient and patently devoid of merit on their face.
 New York Industrial Code Regulations (EDA)
|
|
Regulation § 23–1.25(a)(3)(i), Welding and flame cutting operations.
(3) Compressed gas cylinders.
Use.
(i) Compressed gas cylinders shall be raised or lowered only in suitable cradles. The use of ordinary slings for such purpose is prohibited.
|
Regulation § 23–1.25(a)(3)(i) is likely sufficiently specific to support a Labor Law § 241(6) cause of action.
|
There are no cases directly on point for this subsection, however the prior paragraph with a specific command akin to this paragraph was found to be sufficiently specific to support a Labor Law § 241(6) cause of action.
|
|
|
|
Labor Law Pointers
Editor
David R. Adams
Associate Editor
Eric S. Bernhardt
Associate Editor
Timothy P. Welch
Associate Editor
Marc A. Schulz
Associate Editor
Eric D. Andrew
Associate Editor
Patrice C. S. Melville
Associate Editor
Ashley M. Cuneo
Labor Law Team
|
|
|
Hurwitz Fine P.C.
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
575 Broadhollow Road, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Albany
Phone: 518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Niagara Falls | Rochester
Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
www.hurwitzfine.com
© 2023, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
|
|
|
|
|
|
