Sui Generis--a New York law blog

Second Department Hold Labor Law s. 240 Applicable

In Lijo v. City of New York, 2006 NY Slip Op 05594, the Second Department considered the issue of whether the injured plaintiff was conducting work that fell within the ambit of Labor Law s. 240(1) at the time that he was injured. 

Prior to the accident, the plaintiff had worked for 3 months underground  on a sewer repair project in Queens.   2 days before the accident, a backhoe used in the project came into contact with overhead electrical wires, causing one of them to fall off of a metal hook and hang low to the ground.  Plaintiff was elevated in the bucket of a backhoe and was attempting to fix the broken wire when he fell nearly 25 feet to the ground.

The Court determined that the plaintiff was employed in the repair or alteration of the sewer line when he fell, since the work he was performing in fixing the electrical line was ancillary to those acts.  The Court stated that:

[I]t is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts... Here, at the time of the accident, the plaintiff and his coworkers were still in the process of finishing the restoration phase of the sewer repair project... The street excavation was still being backfilled with asphalt and there is a triable issue of fact as to whether reattaching the wire to the hook was required as part of the plaintiff's employer's contract with the City. Certainly, there is no bright line separating the enumerated and nonenumerated work.  (Internal citations and quotations omitted).

I think that the Court's decision is reasonable and in keeping with the underlying purpose of the Labor Law statutes, although it's certainly not a clear cut issue and is fact specific.  Given the facts of this case, the Court's decision makes sense to me.

Third Department Considers Labor Law s. 240(1)'s Applicability to Falling Utility Pole

In a decision decided today, Zirkel v. Frontier Communications of Am., Inc., 2006 NY Slip Op 03947, the Third Department considered the plaintiff's claim that the the defendants were strictly liable for his injuries that occurred while he was at work and in the process of removing old utility poles, when one fell and hit him on the head.

The plaintiff alleged that since the utility pole was caused to fall due to the effects of gravity, summary judgment in his favor was appropriate.  The Court disagreed and stated that:

While plaintiff's job assignment that day indeed envisioned that the subject pole would ultimately be removed from the ground by a hydraulic powered winch attached to a derrick truck, it fell before the winch had even been attached to the pole. In this regard, it is axiomatic that Labor Law § 240 is not intended to cover all dangers tangentially related to gravity. Therefore, in order for a worker struck by a falling object to recover under Labor Law § 240, he or she must be able to show that it fell while being hoisted or secured. Here, the utility pole which struck plaintiff was not being hoisted or secured at the time it fell; therefore, Supreme Court appropriately granted defendants summary judgment on this claim. (Internal citations and quotations omitted.)

Fourth Department Concludes Presence of Safety Harness at Worksite Not Enough

Here is yet another Labor Law 240(1) decision for you to contemplate.  In Whiting v. Dave Hennig, Inc., 2006 NY Slip Op 03214, the plaintiff sustained injuries when he fell from a roof under construction and alleged that his injuries were due to the defendants' failure to provide him with appropriate safety devices--namely a safety harness. 

The Fourth Department concluded that:

With respect to plaintiff's motion, we conclude that plaintiff met his burden of establishing his entitlement to judgment as a matter of law by establishing that he was not furnished with the requisite appropriate safety devices and that the absence of appropriate safety devices was a proximate cause of his injuries (see Howe v Syracuse Univ., 306 AD2d 891).  Contrary to defendants' further contention, the presence of safety harnesses somewhere on the work site does not satisfy the duty to provide appropriate safety devices (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523-524, rearg denied 65 NY2d 1054).  (Emphasis added).

Curiously, the Fourth Department did not cite the Court of Appeal's recent decision, Robinson v. East Med. Ctr., LP, 2006 NY Slip Op 02457, which I discussed here, wherein the Court of Appeals stated:

Where a plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1) [does] not attach.. Instead, the owner or [*4]contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them.

In short, there were adequate safety devices — eight-foot ladders — available for plaintiff's use at the job site. Plaintiff's own negligent actions — choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work — were, as a matter of law, the sole proximate cause of his injuries. (Internal citations and quotations omitted and emphasis added).

It's possible that, unlike Robinson, there was no evidence offered that the workers in Whiting were generally able to help themselves to safety harnesses when needed.  The underlying facts in Whiting are not set forth in great detail in the opinion. 

Nevertheless, I think it's strange that the Court didn't at least mention Robinson in its opinion, since it appears to be directly on point, and its application might very well mandate a different result.

Keavey's Still Out of Luck

You may recall this post from last December wherein I asserted that the Fourth Department had issued conflicting labor law decisions.  Yesterday, the Court of Appeals handed down its decision in one of the cases discussed in that post, Keavey v. New York State Dormitory Auth., 2006 NY Slip Op 03445.  The Court  upheld the Fourth Department's decision.

The Court of Appeal's decision was quite short.  Here is the substantive portion of the decision in its entirety:

The Appellate Division properly dismissed plaintiff's Labor Law § 240 (1) and § 241 (6) causes of action. The act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity related accident encompassed by Labor Law § [*2]240 (1) (see Toefer v Long Island R.R., 4 NY3d 399 [2005]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Further, plaintiff failed to demonstrate the applicability of any section of the Industrial Code.

Unfortunately, the facts were not set forth in this opinion, so it's still unclear whether the plaintiff fell into the gap up to his knee or up to his elbow (the Fourth Department's decision offered conflicting statements regarding that fact).  Arguably, if one assumes the most extreme factual scenario, that the plaintiff fell up to his elbow, the Court is holding that even a fall of eight feet while standing on a trailer bed is not a gravity-related incident. 

This decision seems to contradict the Fourth Department's decision in Worden v. Solvay Paperboard, LLC , which I discussed here.  In Worden, the Fourth Department concluded that the plaintiff faced a gravity-related risk when he fell four to five feet from a tractor trailer bed.  As noted by Matt Lerner of New York Civil Law in the comments to my post and at this post from his blog, the decision in Worden was made without reference to Toefer and appeared to directly contravene the Court of Appeal's decision in Toefer.  That premise is further supported by the Court of Appeal's decision yesterday in Keavey.  I wonder if the decision in Worden is being appealed.  By all rights, it should be.

Labor Law 240(1) Proximate Cause Issues Addressed by NY Court of Appeals

In Robinson v. East Med. Ctr., LP, 2006 NY Slip Op 02457, the plaintiff was injured while working on a 6-foot ladder and alleged that the defendants were liable under Labor Law s. 240(1) since his foreman failed to deliver an 8-foot ladder to him and was thus forced to complete his work with the "unsafe 6[-]foot ladder."

The Court of Appeals first set forth the applicable law:

Where a plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1) [does] not attach.. Instead, the owner or [*4]contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them. (Internal citations and quotations omitted.)

The Court then held that:

In short, there were adequate safety devices — eight-foot ladders — available for plaintiff's use at the job site. Plaintiff's own negligent actions — choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work — were, as a matter of law, the sole proximate cause of his injuries.

Matt Lerner at New York Civil Law posted about this decision here.  Matt also posted about a recent Third Department case which applied the law set forth in Robinson here.

Fourth Department Consideres Whether Homeowner Exemption Inapplicable

In Freeman v. Advanced Design Prods., Inc., 2006 NY Slip Op 01957, the Fourth Department considered the issue of whether the homeowner exemption was applicable thus shielding the defedants from liaiblity for the plaintiff's Labor Law s. 240(1) claim.  The Court concluded that the homeowner exemption did not apply and thusthe trial court properly denied the defendants' motions for summary judgment.

The Court stated that:

The record establishes that, for the seven or eight years preceding the fire, defendants had used the property exclusively for commercial purposes, i.e., as rental property; that the fire had rendered the premises unoccupied and indeed uninhabitable for the duration of the work; that defendants had contracted for that work for the explicit purpose of renovating the house for sale to a third party; and that defendants had sold the house upon the completion of the work. Under those circumstances, defendants are not entitled to the benefit of the homeowner exemption.

Fourth Department Considers Labor Law Issues

A number of interesting issues were addressed by the Fourth Department in Bax v. Allstate Health Care, Inc., 2006 N.Y. Slip Op. 00890.  In this case, the plaintiff was injured while on an icy roof in order close two smoke hatches that had automatically opened when a false fire alarm was activated. 

In regard to the Labor Law s. 240(1) claim, the Court  concluded that:

(A)lthough the task of closing the smoke hatches entailed cleaning the hatches of snow and ice and bending one of the latches so that it would catch, the task did not constitute a "repair" of the building within the meaning of section 240 (1).

The Court also addressed, sua sponte, an interesting evidentiary issue.  In opposition to the summary judgment motion, the plaintiffs submitted the affirmations of architects as expert opinion evidence.  The Court noted that pursuant to CPLR 2106:

(O)nly the affirmation of an attorney, physician, osteopath or dentist is entitled to be considered "in lieu of and with the same force and effect as an affidavit."

However, since the defendants did not dispute the admissibility of the affirmation, the deficiencies were deemed waived.

Finally, and most importantly, the Court clarified its prior rulings in regard to common law negligence claims relating to open and obvious icy conditions.  The Court stated:

The fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person's comparative fault (see e.g. Maza v University Ave. Dev. Corp., 13 AD3d 65; Tulovic v Chase Manhattan Bank, 309 AD2d 923; MacDonald v City of Schenectady, 308 AD2d 125, 126-127; Waszak v State of New York, 275 AD2d 916; Ditz v Myriad Constrs., 269 AD2d 874). To the extent that prior decisions of this Court hold to the contrary (see e.g. Millson v Arnot Realty Corp., 266 AD2d 918; [*3]Shandraw v Tops Mkts., 244 AD2d 997; Hill v Corning Inc., 237 AD2d 881, lv denied in part and dismissed in part 90 NY2d 884), they should no longer be followed.

All and all, a decision full of interesting rulings and helpful clarifications.  It's definitely worth taking the time to read in full.

Fourth Department Considers Issue of "Altering" Structure Within the Context of Labor Law s. 240(1)

In Enge v. Ontario County Airport Mgt. Co, LLC, 2006 N.Y. Slip Op. 00932, the Fourth Department considered, in part, the issue of whether the plaintiff was engaged in altering a building or structure within the meaning of Labor Law s. 240(1).  The Court described the facts of the case as follows:

Plaintiff's employer was hired by Transit to equip the new offices with working phones, and that work required the running of telephone wires from the old offices to the new offices, splicing the wires into each new office, drilling holes in the walls thereof and feeding the wires down through the walls, and drilling holes for the jacks and pulling the wires through the jacks.

The Court concluded that the plaintiff was engaged in altering a building or structure, despite the defendant's contentions that the plaintiff was injured while simply running wires and that the job was never completed by plaintiff's employer.

This holding makes sense to me, and is in keeping with the Court of Appeal's decision in Joblon v. Solow, wherein the plaintiff was engaged in extending electrical wiring through a concrete wall..  I discussed Joblon in more detail here. 

His Heart Skipped a Beat

In Busch v. Erie County Indus. Dev. Agency, the Fourth Department considered the issue of whether the plaintiff's own actions were the sole proximate cause of his fall from a ladder on his Labor Law s. 240(1) claim.

In opposition to the plaintiff's motion for summary judgment, the defendant submitted evidence establishing that the plaintiff had forgotten to take his heart medication on the morning of the accident and that he told his physicians that he was unable to recall the accident, since he may have received a shock from his implanted heart defibrillator. 

Evidence was also submitted from an eyewitness who testified that the ladder was tied off at the top when plaintiff fell and thus the ladder did not move.

Accordingly, the court held that:

(W)e conclude that there is a triable issue of fact on the record before us whether plaintiff's actions were the sole proximate cause of the accident.

The fact that his defibrillator went off wold not necessarily hurt him at trial, in my opinion.  Although a jury could certainly find that it went off due to the failure to take his heart medication, thus causing him to fall, it could also just as easily conclude that the fall itself precipitated the heart irregularities that triggered the device. 

Is a Burn Injury Caused by Hot Tar While Standing on a Roof a Labor Law 240(1) Violation?

In Suwareh v. State of New York, 2005 N.Y. Slip Op. 10217, the First Department considered the issue of whether the defendants were liable as a result of the plaintiff's burn injury, which was sustained by the plaintiff as he stood on a roof.  He was hauling a hot bucket of tar up to the rooftop using a rope, and when he attempted to free the bucket, which had become stuck on a ledge on its way up to the roof, he lost his balance and leaned back so as not to fall.  As he did so, hot tar spilled from the bucket onto his feet. 

The Court noted that the defendant's expert had opined that one of two alternate methods should have been used to transport the hot tar to the roof.  The Court then considered whether the injury was gravity-related.  The Court first set forth the applicable standard:

The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

The Court then concluded that the defendants were liable pursuant to Labor Law s. 240(1) since the plaintiff was injured as a result of a gravity-related risk in that 1) he was working at an elevated height and 2)was involved in hoisting dangerous materials from one level to another.

The Court stated that: 

(T)he risk of injury was the direct result of the application of gravity to either plaintiff himself or the materials being hoisted. Had plaintiff been supplied with a proper hoist to lift the tar, and a proper brace to prevent him from losing his balance on the elevated roof, the accident may not have occurred.

I am puzzled by this holding and, once again, find myself in agreement with the dissent.  The dissent noted that pursuant to the Court of Appeals case, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 (1993), Labor Law s. 240(1) was intended to provide special protections for certain elevation-related hazards.  The Court quoted the following from Ross:

The special hazards' to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the special hazards' referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. In other words, Labor Law § 240 (1) was designed to prevent those type 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 (81 NY2d at 501 [second emphasis added, citation omitted]).

The dissent then stated: 

To be sure, as claimant's expert opined, if a hoist had been used to transport the buckets of hot tar to the roof, claimant well may not have sustained the burns to his feet. But that is irrelevant. Injuries that do not result from elevation-related hazards "are not compensable under [Labor Law § 240(1)] even if proximately caused by the absence of an adequate scaffold or other required safety device" (id. at 500).

The dissent's position makes perfect sense to me.  He was injured after he'd bent down to dislodge the bucket from a ledge, which was presumably right below the roof, since the plaintiff spilled the tar onto his feet as he was dislodging the bucket.  The plaintiff could have easily lost his balance and been injured in this exact manner if he'd been standing on the ground and attempted to pick up a bucket of hot tar which had become stuck to the ground or caught on a tool, etc.  The fact that the surface upon which he was standing was elevated did not cause his injuries, nor did the fact that the bucket was being hoisted.  His injuries were only tangentially related to the causal effects of gravity and thus should not have fallen within the ambit of Labor Law s. 240(1).

It seems to me that a number of the Appellate Divisions are gradually expanding the class of injuries covered by Labor Law s. 240(1) beyond that contemplated by the legislature, or, for that matter, the Court of Appeals.  Is it my overactive imagination at work, or is this a recurring theme as of late?   If it's the latter, I wonder what the impetus is behind it?