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Tree Removal Was First Step in Making Structural Repairs, Injury During Tree Removal Covered Under Labor Law 240 (1)

The Second Department determined removal of a tree which had fallen on a house, causing structural damage, was the first step in repairing the structure. Therefore, plaintiff, who fell while attempting the remove the tree, was engaged in an activity covered by Labor Law 240 (1) and 241 (6):

“… [T]he protections of Labor Law § 240(1) are to be afforded to tree removal when undertaken during the repair of a structure … . * * * Since the plaintiff was engaged in activities ancillary to the repair of the building from which he fell, the provisions of Labor Law § 241(6) are also applicable to the facts of this case.” Moreira v Osvaldo J. Ponzo, 2015 NY Slip Op 06792, 2nd Dept. 9-16-15

 

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Homeowner’s Exception Did Not Apply to a Horse Barn Used for Commercial Purposes Despite Presence of an Apartment in the Barn

The Second Department determined the “homeowner’s exception” to the applicability of the Labor Law did not apply to a barn used to house horses for commercial purposes, even though the barn included an apartment used by one of the horse farm’s shareholders. The court also noted that the “recalcitrant worker” affirmative defense should not have been dismissed “sua sponte” in the absence of a motion to dismiss it.  With respect to the homeowner’s exception, the court explained:

“… [T]he plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) … . Among other things, the plaintiff demonstrated that the defendant described itself as “essentially . . . a business for keeping horses,” its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident. The plaintiff’s submissions also established that when the defendant corporation originally purchased the subject property, the large barn was in a state of disrepair. The defendant renovated the large barn and added many improvements to the property, including multiple paddocks, an additional barn, and an “Equicisor,” a “72-foot circular automated horse exercising machine.” One of the defendant’s shareholders described the apartment in the rear of the barn as a part-time “office residence” where he might stay a ‘few days’ per week, although the amount of time he stayed varied depending on the season and the horse racing schedule. Under these circumstances, the plaintiff established, prima facie, that the defendant’s boarding stable, which was used primarily for commercial purposes, did not constitute a residence within the meaning of the homeowner’s exemption …”. Rossi v Flying Horse Farm, Inc., 2015 NY Slip Op 06798, 2nd Dept 9-16-15

 

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Testimony Which Could Have Added Relevant Evidence About the Nature of Plaintiff’s Work (Pre-Injury) and the Effects of the Injuries Should Not Have been Excluded as “Cumulative”

The First Department determined the plaintiff in a Labor Law 240 (1) action was entitled to a new trial because the trial judge should not have excluded the testimony of a co-worker and plaintiff’s wife as “cumulative:” The court explained:

“… [A] new trial on damages is necessitated, because we disagree with the court’s preclusion of testimony by plaintiff’s wife and coworker. Testimony is properly precluded as cumulative when it would neither contradict nor add to that of other witnesses … . Here, the testimony of plaintiff’s wife and his coworker would have added to the testimony of other witnesses. First, the coworker saw plaintiff fall, and his testimony as to the impact to plaintiff’s foot could have been highly probative of plaintiff’s claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff’s position that as a result of his injury he could no longer perform that kind of work. To be sure, plaintiff testified about his job duties, but the coworker’s status as a disinterested witness would have given his testimony added value to the jury … . Nor was the proffered testimony of plaintiff’s wife likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband’s condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.” Segota v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06764, 1st Dept 9-15-15

 

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Error to Charge Jury on Comparative Negligence/Inadequate Awards for Pain and Suffering and Loss of Consortium

The First Department determined the jury should not have been charged on comparative negligence in this Labor Law 241 (6) action. Plaintiff’s decedent was injured when he tripped and fell over construction debris. Because defendant was obligated to keep the area clear of debris, and because there was no clear path plaintiff’s decedent could use, the comparative negligence jury instruction was not warranted. The First Department further determined that the award for pain of suffering ($100,000) was inadequate and the failure to award any damages for loss of consortium was against the weight of the evidence and rendered the verdict inconsistent. Pursuant to plaintiff’s motion to set aside the verdict, a new trial was ordered unless defendant agreed to a $400,000 award for pain and suffering and a $50,000 award for loss of consortium:

The evidence established that, as a result of his hand injury, [plaintiff’s decedent] developed, inter alia, nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety, and significant limitation of the use of his left hand due to permanent contracture of the fingers. Upon a review of other relevant cases, we find that the award of $100,000 for pain and suffering materially deviates from reasonable compensation … .

The jury’s decision not to award damages to plaintiff (wife) for loss of consortium was against the weight of the evidence … . Plaintiff (wife) described significant changes in [plaintiff’s decedent’s] behavior after his accident and explained the impact this had on their relationship. On this record, the jury’s decision to award damages for pain and suffering, but none for loss of consortium, is inconsistent. Kutza v Bovis Lend Lease LMB, Inc., 2015 NY Slip Op 06753, 1st Dept 9-8-15

 

Plaintiff Entitled to Summary Judgment on His Labor Law 240 (1) Cause of Action—Plaintiff Fell from Temporary Staircase Which Was Wet from Rain

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a temporary staircase which was wet from rain. The dissent argued that there was a question of fact whether a safer temporary staircase could have been provided, and, therefore, summary judgment in plaintiff’s favor was not appropriate. The majority wrote:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. As the dissent recognizes, plaintiff was engaged in a covered activity at the time he slipped and fell down the stairs of a temporary tower scaffold. A fall down a temporary staircase is the type of elevation-related risk to which section 240(1) applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute … . As we stated in Ervin v Consolidated Edison of N.Y. (93 AD3d 485, 485 [1st Dept 2012]), involving a worker who fell when the temporary structure he was descending gave way, “It is irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity-related risk.” We are thus at a loss to comprehend the dissent’s reasoning that although the temporary staircase was a safety device and although it admittedly did not prevent plaintiff’s fall, there is nonetheless a factual issue which would defeat plaintiff’s entitlement to partial summary judgment on his section 240(1) claim.

The fact that the affidavits of plaintiff’s and defendant’s experts conflict as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff’s favor. A plaintiff is entitled to partial summary judgment on a section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants’ failure to take mandated safety measures to protect him against an elevation-related risk … . Plaintiff’s expert opined, inter alia, that the stairs showed obvious signs of longstanding use, wear and tear; therefore, a decrease in anti-slip properties was to be expected. Given that it is undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been. O’Brien v Port Auth. of N.Y. & N.J., 2015 NY Slip Op 06749, 1st Dept 9-8-15

 

Collapse of Rotten Floor First Revealed When Carpet Was Removed Was Not Foreseeable—Labor Law 240(1) Cause of Action Properly Dismissed—Defect Was Latent and Was Not Caused by Owner—Labor Law 200 and Common-Law Negligence Causes of Action Properly Dismissed

The Second Department determined plaintiff’s fall through a rotted portion of subfloor exposed when carpeting was removed was not foreseeable.  Therefore the Labor Law 240 (1) cause of action, the Labor Law 200 cause of action, and the common-law negligence cause of action against the owner of the property were properly dismissed:

In order for liability to be imposed under Labor Law § 240(1), there must be “a foreseeable risk of injury from an elevation-related hazard . . . as [d]efendants are liable for all normal and foreseeable consequences of their acts'” … . Thus, the collapse or partial collapse of a permanent floor may give rise to liability under Labor Law § 240(1) where ” circumstances are such that there is a foreseeable need for safety devices'” … . Here, however, the plaintiffs failed to demonstrate that the partial collapse of a small section the basement subfloor and, in turn, the need for safety devices to protect the injured plaintiff from an elevation-related hazard, were foreseeable. Consequently, since the plaintiffs did not meet their prima facie burden of demonstrating their entitlement to judgment as a matter of law, the Supreme Court properly denied that branch of their motion which was for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) .. . * * *

Where, as here, a plaintiff’s alleged injury arose not from the manner in which the work was performed, but from an allegedly dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing only that it neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the defect in the subfloor, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that it did not create the defect. Carrillo v Circle Manor Apts., 2015 NY Slip Op 06652, 2nd Dept 8-26-15

 

Plaintiff Entitled to Summary Judgment Re: Fall from Non-Defective Ladder After Co-Worker Who Had Been Stabilizing the Ladder Was Called Away—Defendants Did Not Demonstrate Plaintiff Was Adequately Protected—Comparative Negligence Is Not Relevant

The First Department, over a dissent, determined plaintiff’s motion for summary judgment for the Labor Law 240 (1) cause of action should have been granted. Plaintiff fell from a non-defective ladder when he lost his balance while attempting to use a drill to install a metal stud.  A co-worker, who had been stabilizing the ladder, had been called away five minutes before plaintiff fell. Plaintiff alleged no one else was around who could have stabilized the ladder. The court noted that plaintiff’s alleged comparative negligence was not relevant. The only relevant consideration is whether plaintiff was provided with adequate protection, an issue not addressed by defendants:

Supreme Court erred in denying plaintiffs’ motion for summary judgment against defendants on the cause of action alleging a violation of Labor Law § 240(1). The dissent mischaracterizes the majority’s position. We do not simply hold that “a plaintiff-worker’s testimony that he fell from a non-defective ladder while performing work . . . alone establish[es] liability under Labor Law § 240(1). Rather, it is undisputed that no equipment was provided to plaintiff to guard against the risk of falling from the ladder while operating the drill, and that plaintiff’s coworker was not stabilizing the ladder at the time of the fall. Under the circumstances, we find that plaintiff’s testimony that he fell from the ladder while performing drilling work established prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim … . In response, defendants failed to raise a triable issue of fact concerning the manner in which the accident occurred or whether the A-frame ladder provided adequate protection. Their arguments that plaintiff caused his own injuries, by allegedly placing himself in a position where he had to lean and reach around the side of the ladder to fix the wall stud, at most establish comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Caceres v Standard Realty Assoc., Inc., 2015 NY Slip Op 06645, 1st Dept 8-25-15

 

Labor Law 240 (1) Concerns Only Whether Proper Safety Equipment Was Provided—Comparative Negligence Is Not Relevant

The First Department determined plaintiff was entitled to summary judgment under Labor Law 240 (1) for injury incurred while using the top half of an extension ladder which did not have rubber feet. The court noted that contributory or comparative negligence is not a defense to a Labor Law 240 (1) cause of action:

Plaintiff presented evidence establishing that defendants did not provide “proper protection” within the meaning of Labor Law § 240(1). The record indicates that plaintiff “only saw the extension ladder” in the area where he was working. There was no scaffolding available to plaintiff. Plaintiff was not wearing a safety harness, and there was no appropriate anchor point to tie off the ladder.

We reject defendants’ assertion that plaintiff’s conduct was the sole proximate cause of his injuries. Plaintiff’s knowing use of half of the extension ladder without proper rubber footings goes to his culpable conduct and comparative negligence. Comparative negligence is not a defense to a claim based on Labor Law § 240(1), where, as here, defendants failed to provide adequate safety devices … . Further, defendants failed to show that plaintiff refused to use the safety devices that were provided to him. Stankey v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06643, 1st Dept 8-25-15

 

Building With One Retail Unit and Two Apartments, One of Which Was Owner-Occupied, Did Not Qualify for the Homeowner’s Exemption from Liability Under the Labor Law

The Second Department determined defendant was not entitled to the homeowner’s exemption from liability under the Labor Law. The exemption is afforded owners of one and two-family residences who do not control the work on the premises. Here defendant’s building had a retail store on the ground level and two apartments above. One of the two apartments was occupied by the sole member of the defendant limited liability company which owned the building. The city had classified the building as within the “J-3” occupancy group, which includes one and two-family residential buildings. In finding the three-unit building did not trigger the exemption, the court explained the purpose behind the exemption, and the irrelevance of the “J-3” classification:

“In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt owners of one and two-family dwellings who contract for but do not direct or control the work’ from the absolute liability imposed by these statutory provisions” … . The homeowners’ exemption “was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed” by Labor Law §§ 240 and 241 … . The intent of the homeowner’s exemption was to make the law fairer and more reflective of the “practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes” … . The fact that title to an otherwise qualifying one- or two-family dwelling is held by a corporation rather than an individual homeowner does not, in and of itself, preclude application of the exemption … .

Here, [defendant] failed to make a prima facie showing that the subject building qualified as a two-family dwelling entitled to the protection of the homeowner’s exemption. Although [defendant] submitted evidence that the building’s certificate of occupancy classified it within the J-3 occupancy group that includes one- and two-family residential dwellings (see Administrative Code of the City of New York, § 27-266), this classification is not dispositive because it is primarily intended to govern what building code safety standards are applicable to the building … . Assevero v Hamilton & Church Props., LLC, 2015 NY Slip Op 06567, 2nd Dept 8-19-15

 

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Plaintiff’s Use of a Partially Open A-Frame Ladder Did Not Constitute Misuse of a Safety Device—Directed Verdict in Favor of Plaintiff on Labor Law 240(1) Cause of Action Was Proper/Plaintiff’s Apparent Failure to Turn Over All of the Relevant Medical Records Required a New Trial on Damages

The First Department, over a dissent, determined that the court, after a jury trial, properly directed a verdict in favor of the plaintiff on the Labor Law 240(1) cause of action. Plaintiff was using an A-frame ladder to weld a tank. It was not possible to open the ladder completely unless the ladder was perpendicular to the tank. Because using the ladder in a perpendicular position would have forced plaintiff to twist his body to weld, plaintiff placed the ladder against the tank in a partially open position. The ladder “shook” and plaintiff fell off it. The First Department held that, under those facts, the way plaintiff used the ladder did not constitute misuse of a safety device and, because Labor Law 240(1) was violated, plaintiff’s action could not constitute the sole proximate cause of the injury. A new trial was required, however, because the medical records supplied to the defendants pursuant to a subpoena were much less voluminous than the medical records brought to trial by the plaintiff’s medical expert, thereby depriving the defendants of the ability to fully cross-examine the expert:

A verdict may be directed only if the “court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” … . The benefit of all inferences is afforded to the non moving party, and the facts are viewed in a light most favorable to it (id.). Here, plaintiff argued that there was no issue of fact necessary for a jury to resolve regarding whether defendants violated their obligation under Labor Law § 240(1) to provide him with an appropriate safety device to guard against the elevation-related risk. That is because, he asserts, there was no alternative safety device readily available to him, and he had no choice but to place the ladder in the closed position given the way the tank was situated. Defendants do not dispute that an unsecured ladder, even one in good condition, can give rise to Labor Law section 240(1) liability if the worker falls from it * * *

A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident … . To be sure, we do not disagree with the dissent that, in principle, placement of an A-frame ladder in the closed position “can constitute misuse of a safety device”…. . * * *

Here, plaintiff gave a specific reason why he used the ladder in the closed position. Plaintiff testified that using the ladder in an open position and twisting his body to face the tank would have been exhausting, requiring him to take frequent breaks, which defendants did not dispute. Indeed, defendants’ assertion that turning the ladder would have presented an issue of “[m]ere expediency or inconvenience” mischaracterizes the record. In any event, we are hesitant to adopt a rule that, in order to permit a worker to enjoy the protection of Labor Law section 240(1), would require him to take extraordinary measures to perform his work, when he has a good faith belief that doing so would cause him acute discomfort while drastically slowing his pace … . Noor v City of New York, 2015 NY Slip Op 06295, 1st Dept 7-28-15

 

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