New York Civil Law

New York Court of Appeals Finds Gap in Labor Law Case Law To Justify Recent Holding

Wait a minute . . . doesn't New York's Scaffold Law (Labor Law sec. 240(1)) apply when there is a falling worker or when the worker is hit by an object improperly hoisted or secured?  No way says the New York Court of Appeals in its recent decision, Runner v. New York Stock Exchange, Inc.  Okay . . .doesn't the gravity-related injury have to have more than a de minimis height involved?  Nope says the Court.

In Runner, the plaintiff injured both of his hands while installing an Unterruptible Power System.  The plaintiff and his co-workers were attempting move a large reel of wire, which weighed approximately 800 pounds, down a set of about 4 stairs.  To prevent the reel from rolling down the flight and causing damage, the workers were instructed to tie one end of a 10-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel.  

The plaintiff and two workers held the loose end of the rope while two other worker began to push the reel down the stairs.  As the reel descended, it pulled the plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar.  The plaintiff was drawn horizontally in the bar, injuring his hands as they jammed their hands against the bar.

The case came to the Court of Appeals via a certified question of the United States Court of Appeals for the Second Circuit.  The Court of Appeals rejected the defendant's argument that sec. 240(1) did not apply because the occurrence did not involve the traversal of an elevation differential either by the plaintiff or an object that hit him.  The defendant was essentially pointing to prior case law -- e.g., Narducci v. Manhasset Bay -- for the proposition that gravity must operate directly upon either the plaintiff or upon an object falling upon the plaintiff if there is to be sec. 240(1) liability.  From analyzing this line of case law, the defendant had a point.

Not so, the Court held.  The Court recognized that prior case law recognized the two scenarios where sec. 240(1) applied, but noted that the Court's reference to those scenarios was not exhaustive.  It essentially wedged this analysis into a gap in the holding in Narducci.  The questions becomes: Did we know that there were gaps in Narducci and similar case law?  

The Court noted that the key to sec. 240(1) liability was shielding the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

The Court held that the relevant inquiry in a falling object case is whether the harm flows directly from the application of the force of gravity to the object; it does not depend upon whether the object has hit the worker.

What about the elevation level being de minimis?  The Court noted that, even though the accident concerned the height differential of 4 steps, the elevation differential here cannot be viewed as de minimis.  The Court noted the reel's weight and amount of force it was capable of generating to reject the de minimis elevation differential claim.  

Based on this holding, the elevation differential analysis now seems to include the character of the object that fell -- i.e., weight, force capability, and any other factor that would pose a danger to the injured worker.

Perhaps the most interesting aspects of this holding are (1) it might signal a shift in the Court's view toward sec. 240(1) actions (see also Affri v. Basch [discussed in a future post], and (2) the impact it will have at the trial and intermediate appellate level.  

Appellate Division, Second Department Addresses Labor Law Action Regarding Scaffold Slipping in Hole

In Caballero v. Benjamin, the Appellate Division, Second Department held that the plaintiff injured worker established prima facie that the owner and general contractor were liable under Labor Law sec. 240(1).  A wheel on the scaffold upon which the plaintiff was working fell into a hole, causing him to fall.  The Court reasoned that the violation of sec. 240 was the proximate cause of the accident and, therefore, the plaintiff's conduct (not discussed in the decision) could not be the sole proximate cause.

The Court also held that the subcontractor was not liable under sec. 240(1) because the evidence established that the subcontractor did not have supervisory control over the work or did not have the authority to insist that proper safety measure were followed.

Also, the Court held that the owner and general contractor established their entitlement to judgment as a matter of law on their contractual indemnification claim against the subcontractor.  The noted that, "[a]though 'an indemnification agreement that purports to indemnify a party for its own negligence is void under General Oblications Law sec. 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law."

Apellate Division, Second Department Addresses Multi-Vehicle Accident

In Biddy v. Vanmaltke, the Appellate Division, Second Department held that the defendant driver was not liable regarding a collision of the plaintiff's truck or the one in which the plaintiff was rear-ended by another tractor trailer.  The accident unfolded as follows: The defendant Vanmaltke was driving a minivan in the right lane of the eastbound roadway of the Cross Bronx Expressway, when his car was cut off by a Lincoln Town Car.  Defendant Vanmaltke testified at a deposition that he steered to the left to avoid the Town Car and, in doing so, he contacted a tractor trailer being driven in the center lane by the plaintiff Leon Biddy.  This caused the tractor trailer to veer into the left lane and strike the vehicle that the appellant was driving.  The appellant was driving straight in the left lane.  As the plaintiff Biddy was attempting to stop his truck, he was rear-ended by a tractor trailer.

The Court held: "The evidence presented by the appellants on their motion for summary judgment, including the deposition transcripts of the parties and the police accident report, established, prima facie, that the appellant was not at fault in the happening of the accident and, therefore, could not bear an culpability for the plaintiff's injuries . . . .  There is no proof that the appellant operated his vehicle improperly or engaged in any conduct which helped bring about either the collision between his motor vehicle and the plaintiff's truck or the subsequent rear-end collision involving the two trucks.  Moreover, the appellant was 'in no position to take any steps to either reasonably foresee or avoid' the collision between his automobile and the plaintiff's truck."

Appellate Division, Third Department Addresses Juror Confusion

The Appellate Division, Third Department in Albarado v. Dillon recently addressed one of the defendant's claims of juror confusion.  The appeal concerned a three-car accident stemming from the defendant State Trooper's high-speed chase.  The other defendant was stopped on the same route, attempting to make a left-hand turn.  In attempting to avoid the defendant stopped in front of him, the defendant State Trooper first collided with the plaintiff Flood's vehicle and then, as the patrol car rolled over, with the plaintiff Alvarado's vehicle.

The appeal concerned plaintiff Alvarado's action against the State Trooper, the other defendant, and the plaintiff Flood.  A jury found the State Trooper liable to the plaintiff Alvarado and the plaintiff Flood; it found the other plaintiff not liable.

The State Trooper contended that the jury charge at trial to determine liability regarding the standard of care owed by him (as an on-duty police officer) was confusing and warranted a new trial.  The Third Department rejected the argument that the trial court should have given a more complete instruction.  

The Court held: "While the statutory language may be confusing standing alone . . ., the court did not rely solely on the statute in its charge to the jury.  After reading the statute, the court went on to give a charge that closely mirrored Pattern Jury Instruction 2:79a and, on multiple occasions during its charge, referenced the fact that [the defendant State Trooper and the other defendant] were to be judged by different standards . . . .  Additionally, the verdict sheet very clearly indicated these differing standards.  Furthermore, there is no tangible evidence that the jury was confused in this cse as it did not request a clarification on the instructions are.

The Court also addressed interesting points on review of unpreserved issues of fundamental error and costs of litigation under the CPLR.

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

Appellate Division, First Department Addresses Confidential Settlement Agreement Issue

The Appellate Division, First Department in Osowski v. AMEC Constr. Mgt., Inc. addressed a confidential settlement agreement between the plaintiffs and the defendants.  The plaintiffs and defendants entered into a settlement agreement to perform an end-run around a contractual waiver of subrogation contained in an Owner Controlled Insurance Program.  The opinion concerns issues surrounding the disclosure of confidential settlement agreements and the importance of forthrightness where the court orders disclosure.

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.

New York Court of Appeals' October Session Starts Next Tuesday

The New York Court of Appeals' October 2009 Session starts next Tuesday, October 13, 2009.  Here is the schedule of oral arguments for the Session.

Appellate Division, Second Department Dismisses Appeal Based on Inadequate Record

Let the recent decision in Civil v. Tae Hwa Sim serve as a warning.  In this appeal, the Appellate Division, Second Department dismissed the appeal based on an inadequate record on appeal.  The appellant based its motion to intervene, in large part, on an arbitration decision that was submitted to Supreme Court as an exhibit to the appellant's motion papers and the plaintiff's opposition papers.  The appellant failed to included the arbitration decision in the record on appeal.

Anecdotal Tip for Appellate Division, First Department Practice

What happens when you argue an appeal where there is a different attorney listed on the brief?  In some appellate courts, you just alert one of the clerks of the substitution or change.  However, I experienced something at the Appellate Division, First Department this past week.

If the attorney listed on the appellate brief will be different than the one who is going to appear at oral argument, send six labels with the new attorney's name clearly printed on it to the Clerks' office at least a week in advance.  This will save any confusion when you arrive at oral argument; the Court will likely appreciate the advance notice.