Labor Law

NY Court of Appeals Considers Whether Cleaning Windows While Located Inside of Building Poses an Elevation-Related Risk

Gavel2 In Broggy v Rockefeller Group, Inc. 2007 NY Slip Op 05775, the plaintiff was employed as a window washer and was injured while located inside of a commercial building when he was washing the interior side of the building's windows.  He was standing on a desk located in the room, and then stepped onto the windowsill, at which point he fell onto the floor.

The plaintiff brought suit pursuant to Labor Law 200, 202, 240 (1) and § 241 (6) alleging that he was injured "when he fell from the window sill which was being used as an elevated platform or scaffold from which to perform commercial window cleaning."   

In reaching its decision, the Court first noted that window cleaning at a commercial facility is a specifically enumerated activity covered by Labor Law 240(1), even if occurring at a non-construction site.

The Court concluded that the plaintiffs failed to establish that an elevation-related risk was encountered by the plaintiff and offered instructive language regarding the types of cleaning specifically covered by  Labor Law 240(1):

While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses...(t)he crucial consideration under section 240 (1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240 (1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against.

The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff. Here, plaintiffs did not fulfill this burden. Plaintiff did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show that this was because he was required to work at an elevation to clean the interior of the windows. The desk may have been in plaintiff's way, or it may have been easier for him to reach the top of the windows while standing on the desk, or it may have been quicker for him to climb on the desk than to seek further assistance to move it. To recover under section 240 (1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows. Moreover, summary judgment in favor of defendants is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity. Prior to his accident, plaintiff had cleaned the interior of eight other windows of exactly the same height as those in room 810, and the record does not show that he needed a ladder or other protective device. The only "tools" that he testified to having used were a wand, a squeegee and a bottle of soap.

Was Delay in Notifying Insurer Reasonable?

GavelAt issue in Philadelphia Indem. Ins. Co. v Genesee Val. Improvement Corp., 2007 NY Slip Op 03389, was whether the defendant, GVIC, had failed to timely provide notice to its insured, the plaintiff, of an injured worker's Labor Law s. 200,  240(1) and 241(6) claims.

The worker was injured on September 24, 2001 and commenced suit against GVIC on June 4, 2002.  On June 21, 2002, the plaintiff insurer received notice from the GVIC of the pending lawsuit.  The insurer disclaimed based upon GVIC's 9 month delay in providing notice of the worker's accident.

The Fourth Department concluded that plaintiff insurer was not obligated to defend and indemnify  GVIC since GVIC could not have reasonably believed that it was immune from potential liability.   

In reaching its determination, the Court set forth the relevant law:

Although a good-faith belief in nonliability may excuse a failure to give timely notice...[a]t issue under the policy provision [in this case] is not whether [GVIC had] a good-faith belief in nonliability, but whether [it] should have anticipated a claim... [T]he insured's belief must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence...

Ultimately, the determination turns on whether an ordinary prudent person could have reasonably believed himself to be immune from potential civil liability under the circumstances...(Internal citations and quotations omitted).

The Court then noted that GVIC was aware of the accident when it occurred, but failed to conduct an investigation.  Accordingly, the Court held that GVIC's explanation for its failure to promptly notify its insurer of the accident due to its belief that other parties would bear ultimate responsibility for the worker's injuries was insufficient since the belief in immunity from liability was unreasonable as a matter of law.

These types of determinations are always very fact specific, but without fail, the lesson to be learned from each and every decision relating to late notice is that the safe practice is to notify your insurer of an accident, even if you think that you're not at fault.  It's better to be safe than sorry.

Fourth Department Issues Another Decision Regarding Labor Law 240(1) Claim Based on Fall From Truck Bed

In Amantia v Barden & Robeson Corp., 2007 NY Slip Op 02159, at issue was whether Labor Law s. 240(1)applied to the plaintiff's injuries which were sustained when the plaintiff fell from the bed of a cargo truck.  The Court explained the manner in which the accident occurred as follows:

The truck's cargo floor was 48 inches above the ground. In order to enter the cargo area of the truck, plaintiff leaned one of the (3 feet high and 4 foot wide aluminum) forms against the rear bumper of the truck and climbed up the form. When plaintiff wanted to exit the cargo area of the truck for his lunch break, he again leaned a form against the rear bumper and began to step down from the truck onto the form. On his second step, "the form tilted to the right" and plaintiff fell. Plaintiff does not know what caused the form to tilt to the right.

The Fourth Department concluded that summary judgment dismissing this claim was properly granted:

Contrary to the contention of plaintiff, his work n unloading the cargo truck, including entering and exiting the truck, does not trigger the protections of section 240 (1) "because there was no exceptionally dangerous condition posed by the elevation differential between the [cargo floor] of the truck and the ground, and there was no significant risk inherent in the particular task plaintiff was performing because of the relative elevation at which he was performing that task" (Tillman v Triou's Custom Homes, 253 AD2d 254, 257; see Toefer v Long Is. R.R., 4 NY3d 399, 408; Piccolo v St. John's Home for Aging, 11 AD3d 884, 885; Santoro v New York City Tr. Auth., 302 AD2d 581, 582; Plump v Wyoming County, 298 AD2d 886, 886-887).

It appears that this decision is in line with the recent Court of Appeal's decision in Keavey v. New York State Dormitory Auth., 2006 NY Slip Op 0344 that was previously discussed here.  In that post, I'd noted that in my opinion, the Fourth Department had issued conflicting decisions in regard to falls from truck beds that pre-dated the Court of Appeal's decision in Keavey. 

I think that despite its prior holding to the contrary in Worden v. Solvay Paperboard, LLC , the Court's decision in Amantia makes it clear that injuries sustained as a result of a fall from a truck bed will no longer form the basis for a successful Labor Law s. 240(1)in the Fourth Department.

Fourth Department Considers Whether Labor Law 240(1) Applicable

In a recent Fourth Department decision, Brown v Concord Nurseries, Inc., 2007 NY Slip Op 00795, The plaintiff was injured when he fell from a ladder.  At issue was whether the work being performed by the plaintiff at the time of his fall constituted a repair of the building, thus falling within the ambit of Labor Law s. 240(1), or was instead excludable as routine maintenance.  At the time of his injury, the plaintiff was clamping a broken torsion spring of an overhead door.

The Fourth Department concluded that trial court properly denied the defendant's motion for summary judge on the Labor Law s. 240(1) claim:

The court properly determined that the work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented the proper functioning of the overhead door of a storage building at defendant's nursery complex, constituted the repair of a building rather than routine maintenance and thus constituted "an activity protected under the statute" (Shapiro v ACG Equity Assoc., 233 AD2d 857, 857; see Bruce v Fashion Sq. Assoc., 8 AD3d 1053; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972-973; cf. Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53).

This holding isn't particularly surprising since the Court concluded that that the overhead door was not functioning properly as a result of the broken spring.   Last November the Third Department also considered the issue of whether the work being performed by the plaintiff when he was injured constituted routine maintenance.  That case is discussed here.

Is Labor Law 240(1) Liability Established By Use of Doubled Planks Used As a Bridge Across a Trench?

In Miraglia v H & L Holding Corp., 2007 NY Slip Op 00093, the defendant employer alleged that the plaintiff was a recalcitrant worker since he walked on a plank over a trench rather than using a ladder.  The First Department rejected that defense since the employer testified at trial  "that workers were permitted to walk on planks across a trench at the worksite, provided they doubled the planks."

The Court also stated held that even the use of doubled-up planking was insufficient protection and violated Labor Law s. 240(1):

(P)laintiff's expert offered unchallenged testimony that even doubled-up planking would not have provided adequate protection because the planks were unsecured and subject to movement. Since the planking was insufficient to protect plaintiff from the elevation-related hazard that caused his harm, liability pursuant to Labor Law § 240(1) was established; plaintiff was not, under any view of the evidence, the sole proximate cause of his injuries...At most, plaintiff's failure to double the planks would constitute negligence. However, the doctrine of comparative negligence is not available to diminish a defendant's liability under Labor Law § 240(1).  (Internal citations omitted).

Following trial, the jury awarded the 45-year-old plaintiff, who was impaled by a steel bar from the scrotum to L2 on his spinal cord, resulting in paraplegia and associated complications, $5 million for past pain and suffering, $10 million for future pain and suffering over 35 years, and $8,295,000 for future medical expenses.  However, the Court held that the large award for future pain and suffering was not supported by the evidence, and ordered a new trial on that issue unless the plaintiff agreed to accept a reduced award for future pain and suffering in the amount of $5,000,000.  The Court also reduced the award for future medical expenses to $8,056,222, due to an error in calculating that figure.

Wow.  Talk about a large monetary award! I bet Upstate lawyers reading this summary are drooling.  Verdicts like that are practically unheard of around here.

Second Department Holds Fall From Height Not Within Ambit of the Labor Law

In a recent Second Department Labor Law case, Linkowski v City of New York, 2006 NY Slip Op 07856, the plaintiff was injured when he slipped and fell on a wet stairway landing and fell through plastic netting at the edge of the landing and fell four or five feet down to the floor below.  At the time, the plaintiff was performing asbestos removal work at a Department of Sanitation facility owned by the City of New York.

The Second Department considered a number of interesting issues, including whether Labor Law ss. 240(1), 241(6) and 200 applied to the plaintiff's claims of injury. 

Not surprisingly, the Court concluded that s. 240(1) did not apply since the alleged injuries were not the result of an elevation-related risk within the meaning of that section of the Labor Law.

However, the Court concluded that there were issues of fact as to the plaintiff's Labor Law ss. 241(6) and 200 claims:

With respect to the plaintiff's Labor Law § 241(6) cause of action, to the extent it is predicated upon an alleged violation of 12 NYCRR 23-1.7(d), the Supreme Court correctly found that triable issues of fact exist as to whether the City violated that regulation by allegedly permitting a slippery condition to exist on the stairway landing...Contrary to the City's contention, the plaintiff's deposition testimony established that the stairway landing where the accident occurred was a passageway to and from the work site... Responsibility under Labor Law § 241(6) extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work...

With respect to the plaintiff's common-law negligence and Labor Law § 200 causes of action, summary judgment was properly denied since there are issues of fact as to whether the City created or had actual or constructive notice of the allegedly dangerous condition which caused the plaintiff's accident... (Internal citations and quotations omitted).

Another issue considered by the Court was whether one of the defendants, Bovis, was liable as an agent for either the owner or general contractor under the Labor Law.  Since this is an issue that comes up fairly frequently in Labor Law cases, the Court's concise summary of the applicable legal standards is worthy of mention:

A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured...To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition... It is not a defendant's title that is determinative, but the amount of control or supervision exercised...(Internal citations and quotations omitted.)

The Court concluded that the record established that Bovis' role was one of general supervision only and that Bovis was only a general contractor or the City's statutory agent since the plaintiff failed to submit evidence demonstrating that Bovis had supervisory control over the plaintiff's, so as to enable it to prevent or correct any unsafe conditions.  Accordingly the Court upheld the dismissal of the  claims and cross-claims against Bovis.

Third Department Considers Whether Labor Law 240(1) Applies to Injuries Sustained During "Repairs"

In Kirk v Outokumpu Am. Brass, Inc., 2006 NY Slip Op 07647, the plaintiff was injured when he fell from a ladder while performing work during a routine shut down period.  The work consisted of disabling the production machinery in order to inspect the machinery and replace broken or worn out parts.

The Court noted that routine maintenance is not a protected activity that falls within the ambit of Labor Law s. 240(1) and concluded that the plaintiff's work in this case fell under that exception:

In our view, plaintiff's own description of the work as a "repair" as well as his reliance on invoices which labeled the job similarly failed to create a triable issue of fact concerning the nature of the work performed. In the absence of proof that the machine or object being worked upon was inoperable or not functioning properly...Supreme Court properly concluded that the work performed by plaintiff was in the nature of routine maintenance...Moreover, even if, as plaintiff contends, there was construction and repair work taking place elsewhere on the job site at the time of plaintiff's injury, there is no indication that plaintiff's work was integrated therewith and, thus, he may not rely upon work conducted by others in order to bring him within the statute's protections...(Internal citations and quotations omitted).

Unfortunately for this particular plaintiff, that determination resulted in the Court's affirmance of the trial court's  dismissal of both his Labor Law s. 240(1) and 241(6) claims.   And, his Labor Law s. 200 claim had been dismissed previously.

Another one bites the dust.

Another NY Court of Appeals Labor Law Decision

Yesterday, the New York Court of Appeals handed down another short but sweet Labor Law decision in O'Sullivan v. IDI Constr. Co., Inc.,  2006 NY Slip Op 06344.  Here is the substantive portion, in its entirety:

The order of the Appellate Division should be affirmed, with costs. The courts below properly concluded that plaintiff's Labor Law § 241(6) cause of action, based on 12 NYCRR 23-1.7(e)(1) and (2), failed because the electrical pipe or conduit that plaintiff tripped over was an integral part of the construction. Further, plaintiff cannot recover in negligence or pursuant to Labor Law § 200 because no triable issue of fact exists that defendant IDI Construction Company, Inc.'s on-site safety manager "control[led] the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Picciano & Son, 54 NY2d 311, 317 [1981]) or that IDI maintained an unreasonably dangerous work environment.

Not exactly earth shattering, but nevertheless, when the Court of Appeals speaks, it's always a good idea to pay attention to what it's saying, no?

Short Court of Appeal's Labor Law s. 240(1) Decision

The New York Court of Appeals handed down a very short Labor Law s.240(1) decision on August 29th.  Here is the substantive portion of Schroeder v. Kalenak Painting & Paperhanging, Inc. in its entirety:

Plaintiff concedes that wallpapering is not an enumerated activity under the Labor Law (see Labor Law § 240[1]). Moreover, plaintiff fails to allege sufficient facts to establish that her work was part of a larger renovation project subject to coverage under the statute (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; cf. Prats v Port Auth. of New York and New Jersey, 100 NY2d 878 [2003]). Plaintiff's section 241(6) argument is similarly without merit.

I include this decision in the hopes that it's helpful for at least one of my readers!