Labor Law-Construction Law

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department determined Supreme Court properly granted plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action (as well as a Labor law 241 (6) cause of action). Plaintiff was struck when a bundle of rebar that was being hoisted fell. Plaintiff’s actions in placing chokers on the rebar to allow the rebar to be hoisted were not the sole proximate cause of the accident. Others were involved in preparing the rebar for hoisting:

To recover under section 240 (1) for injuries sustained in a falling object case, a plaintiff must establish “both (1) that the object was being hoisted or secured, or that it required securing for the purposes of the undertaking, and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential” … . Here, we conclude that plaintiff established those factors and therefore met his burden on his motion. We note, in particular, that the deposition testimony and two witness affidavits tendered by plaintiff established “that any safety devices in fact used[, i.e., the chokers] failed in [their] core objective of preventing the [rebar] from falling,’ ” and that such failure was a proximate cause of the accident… . In opposition, defendants failed to raise a material issue of fact inasmuch as the opinions of their expert were conclusory … .

Contrary to defendants’ further contention, plaintiff’s actions were not the sole proximate cause of his injuries. “[W]here a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability” … . To establish their “sole proximate cause” theory, defendants were required to present “some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff [was] the sole proximate cause of his . . . injuries” … . Here, the record establishes that plaintiff was not alone in rigging the rebar bundle and transporting it to a different area of the construction site, and thus plaintiff’s conduct could not be the sole proximate cause of his injuries. We therefore conclude that plaintiff’s action in participating in the rigging process raises, at most, an issue concerning his comparative negligence, which is not an available defense under Labor Law § 240 (1) … . Flowers v Harborcenter Dev., LLC, 2017 NY Slip Op 08117, Fourth Dept 11-17-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT))

November 17, 2017

COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT).

The Second Department reversed Supreme Court in a complex action involving Labor Law 240(1), 241(6), 200 and common law negligence causes of action, as well as several contractual and implied indemnification issues, and insurance coverage and duty to defend and indemnify issues. The decision lays out the black letter law on all the issues, illustrates how the appellate courts analyze summary judgment motions, and is well worth reading for an overview of the complexity of a construction accident case involving property owners, several insurance policies, and layers of contractors. Plaintiff fell off a ladder that had been placed on an uneven floor. There are too many substantive issues to fairly summarize them here. With respect to the Labor Law issues, the court wrote:

The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of the defendants’ liability on the Labor Law § 240(1) cause of action. … The plaintiff used the last available ladder in his work area. According to the plaintiff, this ladder was missing two of its rubber feet, and was missing the lowest rung. The plaintiff testified that the floor was “not finished” and that it was partially covered in concrete and partially covered in rubble. The plaintiff indicated that there were “all types of things” strewn on the ground and that the floor “was not level.” The plaintiff stated that, as he was standing on the ladder to perform his work, the ladder “shook,” and he “lost [his] balance” and fell.

The … defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action insofar as it was based on Industrial Code … . Contrary to their contention, the …defendants did not make a prima facie showing that the plaintiff’s conduct was the sole proximate cause of the accident … . …

“Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . “These two categories should be viewed in the disjunctive” … . Where, as here, “an accident is alleged to involve both a dangerous condition on the premises and the means and methods’ of the work, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards” … .

Here, in moving for summary judgment, the defendants failed to address the allegation in the complaint that the plaintiff was injured due to the dangerous or defective premises conditions at the work site. Furthermore, contrary to the Supreme Court’s conclusion, the plaintiff was not ultimately required to demonstrate that the Mall defendants actually exercised supervisory control.

“[W]hen the manner and method of work is at issue in a Labor Law § 200 analysis” the issue is “whether the defendant had the authority to supervise or control the work” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, the defendants failed to establish that they did not have the authority to supervise or control the means and methods of the work performed by the plaintiff. Poalacin v Mall Props., Inc., 2017 NY Slip Op 08027, Second Dept 11-15-17

LABOR LAW-CONSTRUCTION LAW (COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT))/INSURANCE LAW (LABOR LAW-CONSTRUCTION LAW, COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW, COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT))

November 15, 2017

Labor Law-Construction Law

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS ATTEMPTING TO PUSH A HEAVY DOLLY UP A RAMP WHEN IT ROLLED BACK AND INJURED HIM (SECOND DEPT).

The Second Department, reversing in part Supreme Court, determined defendants were not entitled to summary judgment on plaintiff’s Labor Law 240 (1) cause of action. Plaintiff was attempting to push a dolly carrying sheet rock weighing 1000 pounds up a ramp when the dolly rolled back, injuring him. The Second Department also held that the defendants’ motions for summary judgment on the Labor Law 200 and common law negligence causes of action were properly granted because defendants did not have supervisory control over the manner of plaintiff’s work:

Contrary to the defendants’ contentions, the elevation differential between the worker and the loaded dolly while on a four-to-five-foot-high ramp “cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating” … . Indeed, in opposition to the defendants’ original motion, the plaintiff’s expert averred that the 16 pieces of sheetrock loaded onto the dolly weighed more than 1000 pounds. Here, given the amount of force generated by the dolly rolling uncontrollably down the temporary ramp, the defendants failed to establish, prima facie, that Labor Law § 240(1) is not applicable on the ground that the injury did not result from a gravity-related or elevation-related hazard … . Kandatyan v 400 Fifth Realty, LLC, 2017 NY Slip Op 07984, Second Dept 11-15-17

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS ATTEMPTING TO PUSH A HEAVY DOLLY UP A RAMP WHEN IT ROLLED BACK AND INJURED HIM (SECOND DEPT))

November 15, 2017

Labor Law-Construction Law

INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff was injured when a heavy objected being lifted from a horizontal to a vertical position shifted momentarily. The Fourth Department found that the activity during which plaintiff was injured did not involve a risk covered by Labor Law 240 (1):

“Liability may . . . be imposed under [Labor Law § 240 (1)] only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . “Consequently, the protections of [the statute] do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … . Rather, the statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … .

Here, the harm to plaintiff was not “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … ; rather, the submissions establish that plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker’s side … . Although plaintiff’s back injury “was tangentially related to the effects of gravity upon the [switchgear segment that] he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that defendants established as a matter of law that plaintiff’s injuries resulted from a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist., 2017 NY Slip Op 07806, Fourth Dept 11-9-17

LABOR LAW-CONSTRUCTION LAW (INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT)

November 9, 2017

Labor Law-Construction Law

PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this Labor law 241 (6), 200 and common law negligence action should have been granted. Plaintiff was struck by a car while working in the median of a highway. Defendant, Oakgrove, was a prime contractor with whom the injured plaintiff’s employer did not contract. And Oakgrove had no supervisory control over the plaintiff or the worksite:

“The owner or general contractor is not synonymous with the prime contractor . . . Generally speaking, the prime contractor for general construction (especially in State construction projects) has no authority over the other prime contractors . . . unless the prime contractor is delegated work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work” … .

Here, Oakgrove and Foit-Albert were both prime contractors, and plaintiff’s employer contracted only with Foit-Albert. Oakgrove did not supervise or instruct plaintiff. Rather, plaintiff reported to a supervisor at Foit-Albert. Oakgrove established as a matter of law that it had no control over plaintiff or the work he was performing, and plaintiff failed to raise a triable issue of fact … . …

… Oakgrove … established that it did not have control over the work site at the time of plaintiff’s accident …. Thus, the court should have dismissed the Labor Law § 200 claim and common-law negligence cause of action … . Knab v Robertson, 2017 NY Slip Op 07822, Fourth Department 11-9-17

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/PRIME CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

November 9, 2017

Civil Procedure, Evidence, Labor Law-Construction Law

BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s (Duran’s) motion pursuant to CPLR 4404 (a) to set aside the verdict in the interest of justice and for a new trial on the cause of action alleging a violation of Labor Law § 240(1) should have been granted. Plaintiff alleged he fell from a beam which was four feet above the ground. There was evidence plaintiff previously alleged in a document that he fell over debris, but there was a question whether plaintiff, who spoke Spanish, understood the statement in the document. Plaintiff’s counsel asked that the jury be instructed to decide whether plaintiff fell off the beam, but the trial judge refused that request:

… Supreme Court erred in denying the plaintiffs’ request to ask the jury to determine not only whether the temple violated Labor Law § 240(1), but also to determine whether Duran fell off the beam … . Under the particular circumstances of this case, this constituted a fundamental error warranting a new trial because the court’s instructions failed to explain to the jury that, in light of arguably inconsistent accounts of how the accident occurred, the jury was entitled to find that Duran did not fall from the beam or, alternatively, that he did fall from the beam but no safety device was required under Labor Law § 240(1). Further, there was sufficient evidence of juror confusion with respect to this issue … . Notably, the jury requested a readback of Labor Law § 240(1). The court’s errors in failing to properly charge the jury and add the interrogatory requested by the plaintiffs prejudiced a substantial right and warrants a new trial … . Duran v Temple Beth Sholom, Inc., 2017 NY Slip Op 07708, Second Dept 11-8-17

LABOR LAW-CONSTRUCTION LAW (BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (a) (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

November 8, 2017

Labor Law-Construction Law

NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined defendants’ motions for summary judgment on the Labor Law 200 and 240 (1) causes of action were properly granted. The plaintiff was injured when attempting to move a 500-600 pound piece of granite. A co-worker lost his grip and the granite fell 18 or 20 inches onto plaintiff’s toe. Because the defendants did not exercise any supervisory control over the manner of plaintiff’s work, the Labor Law 200 cause of action was dismissed. Monitoring safety conditions does not amount to supervisory control. Because the action did not involve the failure or absence of a safety device, the Labor Law 240 (1) cause of action was dismissed:

“Where . . . a claim arises out of the means and methods of the work, a [defendant] may be held liable for . . . a violation of Labor Law § 200 only if [it] had the authority to supervise or control the performance of the work” … . General supervisory authority for the purpose of overseeing the progress of the work is insufficient to impose liability under the statute … . Here, the defendants established, prima facie, that the plaintiff’s injuries arose solely out of the manner of his employer’s work and the defendants exercised no supervisory control over that work … . The defendants’ authority to monitor safety conditions at the work site is merely indicative of their “general supervision and coordination of the work site and is insufficient to trigger liability” … ,

The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against them. In cases involving falling objects, section 240(1) applies only when “the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . Here, the defendants established, prima facie, that the granite stone did not fall because of the absence or inadequacy of a safety device … . Portalatin v Tully Constr. Co.- E.E. Cruz & Co., 2017 NY Slip Op 07762, Second Dept 11-8-17

LABOR LAW-CONSTRUCTION LAW (NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))

November 8, 2017

Labor Law-Construction Law

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted in this Labor Law 240(1), 241(6) and 200 action. Plaintiff alleged he was directed to work without a scaffold. He rigged up a ladder with planks on it placed horizontally over a fire escape as a makeshift scaffold. The ladder tipped when a heavy object was placed on it and plaintiff fell:

Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites … . “In order to prevail on a claim under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his or her injuries” … . No recovery is available under Labor Law § 240(1) when the plaintiff’s actions were the sole proximate cause of the accident … .

Here, the evidence submitted on the defendants’ motion for summary judgment failed to establish, prima facie, that no [Labor Law 240(1)] violation occurred, or that the alleged violation was not a proximate cause of the accident … . …

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide workers with a reasonably safe place to work … . * * *

Here, the cause of action arose out of alleged defects or dangers in the methods or materials of the work. The defendants failed, prima facie, to eliminate triable issues of fact as to whether [defendant] had the authority to supervise or control the injured plaintiff’s work, and as to causation … .

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor … . Here, the plaintiffs alleged, inter alia, a violation of Industrial Code (12 NYCRR) § 23-1.16, which requires, in relevant part, that safety belts and harnesses be properly attached to a tail line or lifeline so that “if the user should fall such fall shall not exceed five feet” … . King v Villette, 2017 NY Slip Op 07596, Second Dept 11-1-17

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

November 1, 2017

Labor Law-Construction Law

PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).

The First Department determined plaintiff was properly granted summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged he was not provided with a ladder and was instructed to climb up the side of a bridge, from which he fell. The defendants’ claim that plaintiff was at fault because of his size is of no consequence because comparative fault is not a defense:

Plaintiff made a prima facie showing that Labor Law § 240(1) was violated, and that the violation was a proximate cause of his injury … . He testified that onsite supervisors gave him a work assignment requiring him to work from the top of a sidewalk bridge, thereby exposing him to elevation-related risks covered under Labor Law § 240(1). He further stated that he was not provided with a ladder or any other safety device; was instructed to access the top of the bridge by climbing up its side; and that, while attempting to do so, he lost his grip, slipped, and fell to the ground. * * *

Defendants’ recalcitrant worker defense fails, since there is no indication that they instructed plaintiff to use a ladder or informed him that a ladder or other safety device was located at the sidewalk bridge … .

Defendants’ contention that plaintiff fell from the sidewalk bridge as a result of his “carelessness” and “bad decisions,” and because of his size, is unavailing. Any comparative negligence by plaintiff is not a defense to his Labor Law § 240(1) claim … . Cardona v New York City Hous. Auth., 2017 NY Slip Op 06620, First Dept 9-26-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT))

September 26, 2017

Corporation Law, Labor Law-Construction Law, Negligence

MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined the corporate veil was properly pierced, a defense expert’s testimony was properly excluded, and millions in damages for pre-impact terror, conscious pain and suffering, as well as punitive damages, were warranted. However, the court deemed the damages awarded by the jury excessive. The defendants were responsible for ordering a new part for a construction crane defendants provided at a construction site. There was evidence the manufacturer of the part was known to be incompetent but was chosen by the defendants anyway to cut costs. The defendants were aware of serious flaws in a similar part made by the same manufacturer. There was evidence the required testing procedures for the new part were deliberately circumvented by the defendants. The evidence supported the jury’s conclusion that the new part failed causing the crane to fall 200 feet, fatally injuring the plaintiffs, the crane operator (Leo) and a co-worker (Kurtaj) on the ground:

… [O]ne individual (Lomma) exercised domination and control over three separate corporations which he treated as one entity.

There was … sufficient evidence to permit the jury to assess personal liability against Lomma. Contrary to Lomma’s arguments, plaintiffs presented substantial evidence of Lomma’s personal participation in the corporate defendants’ affirmatively tortious acts launching the dangerous instrumentality that caused the deaths of plaintiffs’ decedents … . …

The trial court properly precluded the proposed testimony of defense expert James Wiethorn, which not only was not based on facts in the record, but also contradicted facts in the record … . * * *

Preimpact terror is a sub-category of conscious pain and suffering … . * * *

While Lomma and his companies, which dominated the crane rental market in New York, may not have intended to cause plaintiffs’ deaths, these deaths nevertheless arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course. * * *

“[I]t is the duty of the court to keep a verdict for punitive damages within reasonable bounds considering the purpose to be achieved as well as the mala fides of the defendant in the particular case”… . Moreover, “[a]lthough states possess considerable discretion over the imposition of punitive damages, the United States Supreme Court has emphasized that there are constitutional limitations on such awards, and that the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments upon a tortfeasor” … . Matter of 91st St. Crane Collapse Litig., 2017 NY Slip Op 06419, First Dept 9-12-17

NEGLIGENCE (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/CORPORATION LAW (PIERCE CORPORATE VEIL, MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/PIERCE CORPORATE VEIL (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))CRANES (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))

September 12, 2017

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED, PLAINTIFF’S ACTIONS COULD NOT HAVE BEEN THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES (SECOND DEPT).

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS ATTEMPTING TO PUSH A HEAVY DOLLY UP A RAMP WHEN IT ROLLED BACK AND INJURED HIM (SECOND DEPT).

INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT).

PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).

MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT).

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