New York Civil Law

New York Court of Appeals' Hears Oral Argument on Scaffold Law This Session

New York Civil Law posted about Affri v. Basch earlier this year.  The appeal will be argued this Session.  The Appellate Division decision does not reveal much as to what the novel issue concerns.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.  When the Court's argument summaries are released, I'll write more about this appeal.

Appellate Division, First Department Labor Law Decision to Watch

In the past few years, the New York Court of Appeals has developed a line of case law strengthening the sole proximate cause defense for Labor Law sec. 240(1).  Two cases in particular -- Montgomery v. Federal Express Corp. and  Robinson v. E. Med. Ctr. LP -- are strong cases for the proposition (very generally stated) that an injured worker can be held as the sole proximate cause of the accident where a enumerated safety device is present on the worksite, the worker knows of the safety device's presence on the worksite, the worker knows to use that safety device for the work, and the accident would not have occurred if the worker had used the safety device.

The Appellate Division, First Department's holding in Cherry v. Time Warner, Corp. now addresses the Court's sole proximate cause case law.   In Cherry, the injured worker fell from a scaffold that only had two sides with guards.  There were scaffolds with guards on all four sides at the worksites, but on different floors.

The Majority concluded that a triable issue of fact existed as to whether the plaintiff's actions were the sole proximate cause of the accident.  Justice McGuire dissented, following the Court of Appeals' holdings.

Irrespective of what you think of the result, the Majority and Dissenting decisions provide an excellent analysis of the issue.

New York Court of Appeals Grants Leave to Appeal on Scaffold Law Issuest

Last week, the New York Court of Appeals granted leave to appeal in Affri v. Basch.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  The exception protects owners of one- or two-family homeowners from sec. 240(1) who contract but do not direct or control the work giving rise to a gravity-related injury.

Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.

New York Civil Law will keep you apprised as this appeal develops.

New York Court of Appeals Clarifies Outar v. City of New York -- Labor Law sec. 240(1)

Does a falling object need to be in the process of being hoisted or secured to come within the ambit of Labor Law sec. 240(1)?  The New York Court of Appeals in Quattrocchi v. F.J. Sciame Contr. Co. clarified the point and reiterated its decision in Outar v. City of New York (see prior post).  In Quattrocchi, the plaintiff alleged that he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway.  

The Court of Appeals agreed with the Appellate Division, Second Department that it was not dispositive that the planks were not in the process of being hoisted or secured when the accident happened, citing Outar for the proposition.  The Appellate Division Majority and Dissenting Opinions are essential to understanding the Court of Appeals' decision (see decision here).

New York Court of Appeals Will Address Labor Law sec. 240(1) Issue

This week, the New York Court of Appeals will hear oral arguments in Stringer v. Musacchia.  The issue in Stringer concerns whether the plaintiff's "work" falls within the protection of Labor Law sec. 240(1).  The facts of this case are important because it turns on whether the plaintiff was performing voluntarily services just before his accident.

The plaintiff was injured when he fell from a ladder while constructing a shed on the defendants' property. The plaintiff was a self-employed construction contractor.  He agreed to build the shed for his friend, the defendant, in return for his inclusion in a hunting trip organized by the defendant on the defendants' property.  The defendant friend organized hunting trips annually; most guests were expected to work on the property in the afternoon after hunting in the morning.

The defendant friend permitted the plaintiff to attend the hunting trip in exchange for his labor in building the shed.  The plaintiff conceded that he was not compensated for building the shed, that he did not expect to receive any remuneration, and that he paid his own travel expenses.

The Appellate Division, Third Department's Majority held that the "work" was not encompassed under the protections of Labor Law sec. 240(1).  The Majority reasoned that, despite the intangible benefit that the plaintiff might have enjoyed from participating in the hunt, because the plaintiff chose to volunteer his services, was under no obligation to complete the shed and knew that he would receive no monetary consideration, he was not an employee entitled to the protections of the Labor Law.

Justices Spain and Peters disagreed, stating, "Regardless of whether a worker such as [the] plaintiff was required to pay for the hunting event and was monetarily compensated for building the shed, or was charged to participate in the hunt and deemed to be thereafter paying off that debt incurred by erecting the shed . . .. or--as here-- a quid pro quo barter arrangement was entered in which no money was exchanged, the construction work such as performed by [the] plaintiff was not gratuitous; rather, it was substantially equivalent to acting as a general contractor to design, oversee and complete the building of a structure."

 

New York Court of Appeals Determines Another Labor Law sec. 240(1) Case

Earlier today, the New York Court of Appeals decided Berg v. Albany Ladder Co. -- a matter concerning Labor Law sec. 240(1).  In Berg, the plaintiff was hurt during the course of unloading steel trusses from a flatbed truck at a construction site.  The Appellate Division, Third Department Majority determined that the accident was not caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.  The Court of Appeals affirmed, holding that the plaintiff failed to raise an issue of fact as to whether his fall was caused by the lack of safety device set out in sec. 240(1).  The Court seems to hint that this fall from approximately 10 feet up is not the type of height covered under sec. 240(1), citing Toeffer v. Long Island R. R.

Appellate Division, First Department Determines Superintendent Is Not Protected Under Labor Law

In Coombs v. Izzo Gen. Contr., the Appellate Division, First Department determined that the building's superintendent was not a protected person under Labor Law secs. 240(1) and 241(6).  The building was undergoing demolition and construction. 

The Court noted that

[the] plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he “a member of a team that undertook an enumerated activity under a construction contract” * * *. As superintendent of the building, [the] plaintiff was responsible for maintaining the building, keeping it clean, supervising the building staff, and watching for unsafe conditions. Although the demolition and construction work made his job more difficult insofar as it affected the portion of the building that was not under construction, [the] plaintiff was not responsible for inspecting the areas of the building under construction. Nor was he responsible for performing any work related to the construction, and his job duties did not change after the project commenced

Recent Appellate Division, First Department Decision Regarding Labor Law sec. 240(1)

What happens when a ladder is inadequate for the task at one spot in the room, not because it is too short or lacked appropriate parts, but because when the ladder is placed in the only possible position at the location, its first rung is completely blocked and inaccessible?  The Appellate Division, First Department in Cohen v. Memorial Sloan-Kettering Cancer Ctr. recently addressed this Labor Law sec. 240(1) issue.  Writing for the Majority, Justice Saxe held that the owner and contractor violated sec. 240(1) even though the ladder provided was not defective.  The Majority discussed how the ladder was inappropriate for the injured plaintiff to ascend and descend in a safe manner given a certain obstruction in the room.

Justice Friedman dissented,  focusing on the lack of a defect in the ladder that the injured plaintiff used.  Justice Friedman also reasoned that the accident resulted from a separate hazard unrelated to the danger that brought about the need for the ladder in the first instance.

Appellate Division, Second Department Recent Reinstates Labor Law sec. 240(1) Claim -- New York's Scaffold Law

The Appellate Division, Second Department recently snatched victory away from the defendants in Castillo v. 62-25 30th Ave. Realty.  The Second Department reinstated the plaintiff's Labor Law sec. 240(1) claim after a jury verdict in the defendants' favor.

It is not clear from the facts, but it does not appear that the injured plaintiff was provided with a safety device.  The jury was presented with two different versions of how the accident occurred.  The plaintiff fell from a height while removing large, heavy metal racks from a wall. 

According to the deposition testimony of a coworker and eyewitness, the plaintiff fell from the elevated worksite when the metal rack he was working on suddenly came loose and, after he hit the floor, the metal piece he had been handling fell and hit him across the leg.   In contrast, after initially stating at his deposition that he had no recollection of how he got hurt, the plaintiff testified at his deposition that he was standing under the scaffold when a piece of the scaffold fell and hit him in the head.

The Court reasoned that under either version, the proximate cause of the plaintiff's injuries was a violation of Labor Law sec. 240(1).  The Court rejected the argument that the plaintiff's handling of the metal rack caused him to fall.  Because it appears that no safety device was provided, and the plaintiff was working at a height, the Court seemed to reason that the mishandling of the device could only have been a contributory factor to his fall (not a viable defense under sec. 240(1)).

Second, the Court held that falling piece of scaffold hitting the plaintiff also constituted a sec. 240(1) violation. 

Makeshift Platforms and Labor Law sec. 240(1) -- New York's Scaffold Law

What happens when a worker is standing on the ground floor but falls to a lower level?  When we think of Labor Law sec. 240(1), we frequently contemplate workers on ladders or scaffolds.

In Grigoropoulos v. Moshopoulos, the injured worker fell down to a basement when the makeshift platform upon which he was working failed.  Citing a case with similar facts (Figueiredo v.  New Palace Painters Supply, Inc.), the Appellate Department, Second Department held that the injured worked came within the ambit of sec. 240(1) becuase the evidence demonstrates that he was required to stand upon a makeshift plywood platform in order to perform his work and when that platform failed, he fell to the basement below.