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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

 

Criteria for Common Law or Implied Indemnification Explained

In affirming Supreme Court’s denial of summary judgment to the defendants in a construction-accident case, the Third Department clearly explained the criteria for common law or implied indemnification.  In a nutshell, any negligence by the party seeking indemnification for payments made to the injured party on behalf of a negligent tortfeasor will preclude recovery. Common law or implied indemnification applies only to parties who are liable vicariously without fault:

“The principle of common-law, or implied indemnification, permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine” … . Accordingly, in order “[t]o establish a claim for common-law indemnification, the party seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability, but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the cause of the accident” … . Hackert v Emmanuel Cong. United Church of Christ, 2015 NY Slip Op 06192, 3rd Dept 7-16-15

 

Two-to-Five-Foot Fall from Edge of Roof to Scaffolding Supported Labor Law 240 (1) Cause of Action

The Third Department determined a two-to-five foot fall from the edge of a roof to scaffolding properly survived summary judgment on the Labor Law 240(1) cause of action:

Liability under Labor Law § 240 (1) arises when a worker’s injuries are “‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … . Ordinarily, the adequacy of a safety device is a question of fact, unless the device “‘collapses, slips or otherwise fails to perform its function of supporting the worker'” … .

The distance that Scribner fell from the roof ledge to the scaffolding is disputed. Claimant alleged, in the bill of particulars, that the scaffolding was two feet below the ledge, while Scribner and the project supervisor asserted in their deposition testimony that the scaffolding was four to five feet below the ledge. Regardless of whether the height differential was two, four or five feet, Scribner’s fall is the type of elevation-related risk to which Labor Law § 240 (1) applies … .

The parties’ submissions also raise a question of fact as to whether the scaffolding afforded … adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries … . Scribner v State of New York, 2015 NY Slip Op 05993, 3rd Dept 7-9-15

 

Wall Surrounding the Edge of a Roof Is Not a Safety Device

Reversing Supreme Court, the Third Department determined plaintiff’s injury was elevation-related and therefore was covered under Labor Law 240(1).  Plaintiff was standing on a building-roof using hand signals to guide a crane when he fell from the roof. Supreme Court reasoned plaintiff could have accomplished his job while staying away from the edge of the roof and, therefore, the accident was not elevation-related within the meaning of the statute. The Third Department rejected that reasoning and noted that the parapet wall around the edge of the roof was part of the structure of the building and could not, therefore, be considered a safety device:

Supreme Court determined that his injuries did not flow from an elevation-related hazard, as plaintiff was not “required to work at an elevation” and could have stayed away from the edge of the roof by directing the crane operator via cell phone … . This determination, however, ran against the undisputed proof that plaintiff had to work somewhere on the roof in order to signal the crane operator and that hand signaling was the usual method of doing so … . His decision to employ an accepted method of signaling while performing necessary work on the roof, even if a safer method existed, constituted nothing more than “comparative fault that is not a defense under the statute”… .

… A parapet wall surrounded the edge of the roof, but “a permanent appurtenance to a building does not normally constitute the functional equivalent of a scaffold or other safety device within the meaning of the statute” … . Salzer v Benderson Dev. Co., LLC, 2015 NY Slip Op 06001, 3rd Dept 7-9-15

 

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