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PLAINTIFF DEMONSTRATED THE SCAFFOLD FROM WHICH HE FELL DID NOT HAVE GUARDRAILS; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff demonstrated the scaffold lacked guardrails. That was enough:

Plaintiff … established prima facie that defendant violated Labor Law § 240(1) and that the violation proximately caused his injuries, as his uncontroverted affidavit demonstrated that the scaffold supplied to him for the work he was performing lacked guardrails and that no other protective devices were provided to protect him from falling. The motion was not premature as defendants failed to show what discovery was needed or what any additional discovery could be expected to reveal (see CPLR 3212 [f] …). Velasquez v 94 E. 208 St. Partners LLC, 2023 NY Slip Op 05110, First Dept 10-10-23

Practice Point: Here, falling from a scaffold with no guardrails warranted summary judgment on the Labor Law 240(1) cause of action.

 

A FALL OF 2O TO 25 FEET FROM A RAMP USED TO TRANSPORT MATERIALS IS COVERED BY LABOR LAW 240(1) (FIRST DEPT.)

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon his falling off a ramp. The fact that the ramp was not a substitute for a ladder or a scaffold was not relevant:

That the ramp was not intended to be used as a substitute for a ladder or scaffold, but rather was used to transport materials, is of no moment. Whether an accident involving a ramp is encompassed by Labor Law § 240(1) turns on a number of factors, the primary one being whether the ramp covered a significant elevation differential … . Here … the height differential from the top of the ramp to the ground was 20 to 25 feet…. . Liu v Whitestar Consulting & Contr., Inc., 2023 NY Slip Op 04821, First Dept 9-28-23

Practice Point: Here plaintiff fell 20 to 25 feet from a ramp used to transport materials. The fact that the ramp was not a substitute for a ladder or a scaffold did not place the accident beyond the reach of Labor Law 240(1). The extent of the elevation of the ramp was determinative.

 

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ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not eliminate questions of fact about whether the homeowner’s exemption applied to the Labor Law 241(6) cause of action and whether he was liable under the Labor Law 200 and common law negligence causes of action. Although the plaintiff was working on defendant’s private residence, plaintiff was employed as a carpenter by defendant:

Although the defendant demonstrated that the work being performed at his single-family home was directly related to its residential use … , the defendant failed to establish, prima facie, that he did not direct or control the plaintiff’s work. In support of his motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that, at the time of the accident, the defendant owned a business that employed the plaintiff to perform carpentry work on decks and that the defendant instructed the plaintiff on which boards to remove and replace at the defendant’s home. The plaintiff also testified that the defendant provided all of the materials and tools that the plaintiff used for the work at the defendant’s home. Thus, the defendant’s submissions failed to eliminate triable issues of fact as to whether he directed or controlled the plaintiff’s work … . * * *

… [T]he plaintiff’s accident arose from the means and methods of the work, not from a dangerous premises condition …. . [Defendant] failed to establish his prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, since he failed to eliminate triable issues of fact as to whether he had the authority to supervise or control the plaintiff’s work … . Walsh v Kenny, 2023 NY Slip Op 04791, Second Dept 9-27-23

Practice Point: Here plaintiff was working on his employer’s (the defendant’s) private residence when injured. The defendant provided the materials and there was evidence he supervised the work. Therefore questions of fact precluded summary judgment on the Labor Law 241(6) cause of action (pursuant to the homeowner’s exemption to the Labor Law 241(6) cause of action), as well as on the Labor Law 200 and common law negligence causes of action.

 

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THE DEFENDANT WHICH RENTED OUT THE AERIAL LIFT WHICH MALFUNCTIONED WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR AND EXERCISED NO CONTROL OVER THE WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; THE NEGLIGENCE CAUSE OF ACTION, HOWEVER, PROPERLY SURVIVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law causes of action could not be brough against the defendant (Ahern) which rented out the aerial lift which malfunctioned. Ahern was not an agent of the owner or contractor and exercised no control over the work, so the Labor Law causes of action did not apply. However Ahern could be liable under a negligence theory:

… [O]nly contractors and owners and their agents can be held liable for Labor Law violations … . To be an “agent” of an owner or contractor, a party must have the ability to supervise and control the worksite and/or plaintiff’s work … . Here, plaintiff does not dispute that Ahern was neither an owner nor contractor within the meaning of the statute. The complaint only alleges that Ahern owned and maintained the aerial lift, not that Ahern exercised any supervision or control over the worksite … .

Plaintiff’s complaint, however, sufficiently pleaded a cause of action for negligence against Ahern. Plaintiff alleges that the aerial lift owned by Ahern malfunctioned, causing plaintiff’s coworker to spray plaintiff with the power washer. … [E]ven if plaintiff’s coworker proximately caused plaintiff’s injury, Ahern is not absolved of liability as “there may be more than one proximate cause of an injury” … . Kull v Ahern Rentals, Inc., 2023 NY Slip Op 04721, First Dept 9-26-23

Practice Point: Here the company which rented out the aerial lift which malfunctioned was not an agent of the owner or contractor and exercised no control over the work. Therefore the Labor Law was not triggered. However, the company may be liable under a straight negligence theory.

 

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THE LABOR LAW CONSTRUCTION-ACCIDENT CAUSES OF ACTION SHOULD NOT HAVE BEEN JOINED OR CONSOLIDATED WITH THE MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING FROM THE CONSTRUCTION-ACCIDENT INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to join or consolidate the Labor Law construction accident causes of action with the medical malpractice action stemming from the injuries should not have been granted:

Plaintiff commenced suit in Kings County against several construction-related entities alleging violations of Labor Law §§ 200, 240, and 241, and common-law negligence in connection with a work place accident causing injuries. After the accident plaintiff was taken to a NYCHHC facility for treatment. Plaintiff also commenced this suit in New York County against NYCHHC, alleging medical malpractice in connection with his post-accident treatment. Although the Labor Law action and this medical malpractice action involve common questions of fact, the medical malpractice action involves numerous additional allegations of professional negligence and injuries that are irrelevant to the Labor law action, and there are no common defendants.

The issues and applicable legal principles presented in plaintiff’s Labor Law action and this medical malpractice action arising out of his subsequent treatment, are so dissimilar that joinder or consolidation pursuant to CPLR 602(a) would not be beneficial and would likely result in jury confusion … . Licona-Rubio v New York City Health & Hosps. Corp., 2023 NY Slip Op 04722, First Dept 9-26-23

Practice Point: Even though the construction-accident injuries were the basis for the medical malpractice action, the Labor Law and medical malpractice actions (against different defendants) should not have been joined or consolidated.

 

PLAINTIFF WAS INJURED WHEN HE ATTEMPTED TO AVOID A FALL FROM A SCAFFOLD WHEN THE PLANK HE WAS STANDING ON SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he attempted to avoid a fall from a scaffold when a plank he was standing on shifted:

… [T]he plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 240(1) through the submission of the plaintiff’s affidavit and a copy of the transcript of his deposition testimony “which demonstrated that the scaffold failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries” … . In opposition, the defendants failed to raise a triable issue of fact. “They did not offer any evidence, other than mere speculation, to refute the plaintiff[‘s] showing or to raise a bona fide issue as to how the accident occurred” … . The defendants’ contention that the alleged injuries were only tangentially related to the effects of gravity and/or an elevation-related risk is without merit … .  Wilson v Bergon Constr. Corp., 2023 NY Slip Op 04616, Second Dept 9-13-23

Practice Point: Apparently the plaintiff was injured when he attempted to avoid a fall from a scaffold. It is not clear whether plaintiff actually fell. Even so, he was entitled to summary judgment on the Labor Law 240(1) cause of the action.

 

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IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT). ​

The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use:

“Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue” … .

Here, the plaintiff asserted … damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff’s health and ability to work, and the plaintiff’s work-life expectancy … . In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff’s life and/or work-life expectancy is, based upon the plaintiff’s health, life habits, employment, and activities … . Hogdahl v LCOR 55 Bank St., LLC, 2023 NY Slip Op 04582, Second Dept 9-13-23

Practice Point: In a personal injury case, evidence of plaintiff’s drug and alcohol use may be relevant to life and work-life expectancy (damages).

 

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PLAINTIFF STORE MANAGER FELL FROM A LADDER WHILE ATTEMPTING TO REPLACE CEILING TILES DAMAGED BY A LEAK IN THE ROOF; PLAINTIFF SUED THE BUILDING OWNER; THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED BUT THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law causes of action in this ladder-fall case were property dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, the manager of a Dunkin Donuts, fell from the ladder when attempting to replace ceiling tiles damaged by a leak in the roof. Plaintiff sued the building owner:

Labor Law § 241(6) applies only to a narrow class of protected workers engaged in “constructing or demolishing buildings in areas in which construction, excavation or demolition work is being performed” … . * * *

The Labor Law § 200 claim arises from the method of work, involving an inadequate ladder, but defendants exercised no supervisory control over the work, and therefore no liability attaches under Labor Law § 200 … .

… [T]he record raises triable issues of fact as to whether defendants had actual or constructive notice of an unsafe ceiling leak and whether the leak proximately caused plaintiff’s injury. Plaintiff alleged that the leak created a slippery condition on the ladder. Yousuf v Horace Plaza, LLC, 2023 NY Slip Op 04492, First Dept 9-7-23

Practice Point: Labor Law 241(6) applies only if plaintiff was injured constructing or demolishing a building. Labor Law 200 (re: method of work) applies only only when defendant exercises supervisory control over the work. Therefore the Labor Law causes of action did not apply to the store manager’s falling from a ladder while attempting to replace ceiling tiles damaged by a leak in the roof.

 

THE COLLAPSE OF A TRENCH IN WHICH PLAINTIFF WAS WORKING WAS AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the collapse of a trench in which plaintiff was working was an elevation-related accident covered by Labor Law 240(1):

… [P]laintiff’s injuries were the direct consequence of defendants[‘] … failure to provide adequate protection against a risk arising from a physically significant elevation differential. Viewing the evidence in the light most favorable to those defendants, the trench was approximately six and a half-feet deep at the time of the incident. Plaintiff is five-and-a-half feet tall and was kneeling at the moment of the right wall’s collapse. There was, therefore, well over a one-foot height differential between the top of the earthen wall and the top of plaintiff’s head. That height differential cannot be characterized as de minimis in light of the extent of that differential, the amount of dirt that poured into the trench when the right wall collapsed suddenly, and the amount of force the dirt was capable of generating … . Moreover, the earthen wall, which required securing for the purposes of the undertaking, collapsed because of the effects of gravity, and the makeshift shoring plainly failed to provide adequate protection against the risk arising from the physically significant elevation differential. The harm to plaintiff flowed directly from the application of the force of gravity to the earthen wall; plaintiff’s injury is directly attributable to the risk posed by the physically-significant elevation differential … . Rivas v Seward Park Hous. Corp., 2023 NY Slip Op 04415, First Dept 8-24-23

Practice Point: The collapse of the inadequately secured wall of the trench in which plaintiff was working was an elevation-related, gravity-related accident covered by Labor Law 240(1). Plaintiff was entitled to summary judgment.

 

PLAINTIFF PLACED THE BOTTOM OF THE LADDER ON SMALL LANDSCAPING ROCKS WHICH GAVE WAY CAUSING PLAINTIFF TO FALL; DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF’S ACTION WAS THE SOLE PROXIMATE CAUSE OF HIS FALL AND CONTRIBUTORY NEGLIGENCE IS NOT A DEFENSE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240(1) action should not have been granted on the ground plaintiff’s actions were the sole proximate cause of the ladder-fall. Plaintiff had placed the bottom of the ladder on top of small “landscaping” rocks and fell when the rocks gave way:

A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she “(1) ‘had adequate safety devices available,’ (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,’ and (4) would not have been injured had [he or she] ‘not made that choice'” … .

Here, UNF and Protection One [defendants] failed to establish, prima facie, that the plaintiff’s actions were the sole proximate cause of his injuries … . Although the plaintiff testified at his deposition that he could have placed the ladder in the driveway, where it would not have been resting on the rocks, he further testified that “it wasn’t safe for me to place it there, because that’s where trucks drive in.” Further, UNF and Protection One failed to submit evidence that the plaintiff’s injuries could have been prevented if the plaintiff had secured the ladder to the light pole with ties, which were available at Protection One’s depot, not the job site … . Iannaccone v United Natural Foods, Inc., 2023 NY Slip Op 04372, Second Dept 8-23-23

Practice Point: In a ladder-fall Labor Law 240(1) action, the defendant’s placing the ladder on small landscaping rocks which gave way was not deemed to be the sole proximate cause of the accident. Contributory negligence is not considered. Therefore defendants’ summary judgment motion should not have been granted.

 

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