The WCM Law Blog

One of the most feared statutes to New York Contractors and their insurers is New York Labor Law §240 (1) (the “Scaffold law”).  Under Section 240, an owner and general contractor faces strict liability when an employee falls from a height while involved “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”  Though the Labor Law was initially enacted to protect construction workers, throughout the years, courts have extended the protection to non-construction workers.  Specifically, in interpreting the term “cleaning,” the Court of Appeals has held that it is not limited to cleaning that was “part of a construction, demolition, or repair project.”  Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680 (2007).  However, in Dahar v. Holland Ladder & Manufacturing Company, No. 23, NYLJ 1202543033849, at *1 (February 21, 2012), the plaintiff asked the Court of Appeals to extend the statute to protect a factory employee engaged in cleaning a manufactured product.

In Dahar, the plaintiff was standing on a ladder in a factory cleaning a seven foot high “wall module” that was to be attached to a building wall, where it would provide support for pipes.  The ladder broke and plaintiff fell to the ground.  Plaintiff argued that he was “cleaning” and that the wall module was a “structure” under the broad definition by the Court of Appeals, as “any production or piece of work artificially built up or composed of parts joined together in some definite manner.”  Id. at *4 (internal citations omitted).  The Court, however, rejected plaintiff’s argument finding that in all but one case involving “cleaning,” the “cleaning” involved cleaning of building windows (the other case involved cleaning a railroad car).  The Court rejected the statute’s application for an injury suffered while cleaning a product in the course of a manufacturing process.  The Court further stated that if it extended the statute to plaintiff’s activity, the statute would encompass virtually every “cleaning” of any “structure” in the broadest sense of that term.  “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture — these and many others would become potential Labor Law §240 (1) plaintiffs.”  Thankfully, the court declined to extend the statute even further than it has done since its enactment.

http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202543033849

For any questions about this case’s potential application, and for more information about WCM’s Labor Law practice, please contact Cheryl Fuchs.

Have you noticed that fewer and fewer pools are built with diving boards or slides in recent years?  Verdicts like this may be a big reason why.  The family of Robin Aleo brought suit against Toys R’ Us in Massachusetts because Ms. Aleo suffered fatal head injuries when an inflatable pool slide collapsed in 2006.  A jury awarded the family $20 million in damages, and a Massachusetts Superior Court recently upheld the award.  This case involved an inflatable slide that collapsed, rendering Toys R’ Us and the manufacturer as potentially liable parties.  Diving boards and stationary slides, however, require contractors to install them, and the risk of potential suits seem to be outweighing the benefit of compensation for many contractors.  The result is fewer diving boards.  Ironically, one can surmise that the decreased use of diving boards may have created the impetus for Toys R’ Us to sell the inflatable slide that collapsed here.  Risk can be mitigated, not eliminated.

http://www.insurancejournal.com/news/east/2012/02/20/236287.htm

Thanks to Brian Gibbons for his contribution to this post.

In East Coast Residential Associates, LLC v. Builders First Source – Northeast, the plaintiff (unit owner association) hired All-Tech to construct exterior decks, and All-Tech subcontracted the work to F. Dias Construction Company.  F. Dias’ insurance policy contained an endorsement listing All-Tech as an additional insured.  After the decks were built, plaintiff sued All-Tech alleging that the decks were built with improper lumber that led to their deterioration.  F. Dias’ insurer refused to pick up All-Tech’s tender, thus All-Tech impleaded F. Dias and its insurer.  Ultimately, All-Tech settled the underlying lawsuit and moved for summary judgment against F. Dias’ insurer for defense costs and indemnification of the amount All-Tech contributed toward settlement.  The lower court granted All-Tech’s motion.  On appeal the court reversed finding that the additional insured endorsement did not apply to any property damage “occurring after all work that was to be performed by or on behalf of the insured had been completed.”  Because the complaint only alleged damage that occurred after the work was completed, the court held that the insurer had no duty to defend or indemnify All-Tech.

Thanks to Andrew Marra for his contribution to this post.

http://lawlibrary.rutgers.edu/collections/courts/appellate/a4808-09.opn.html

In Fernandez v. Stockbridge Homes, LLC, 402886/08, NYLJ 1202542556067, at *1 (Sup., NY, January 25, 2012), Stockbridge Homes hired Sanita Construction Company to constructing four single-family homes.  Plaintiff was an employee of Sanita Construction in the process of moving wooden forms that he used to construct a retaining wall.  Plaintiff alleged that he was standing on top of the retaining wall where there were no scaffolds or safety equipment, and that he fell backward to the ground.  Two non-party witnesses testified that there was scaffolding in place on either side of the wall and that plaintiff jumped off the retaining wall.  Stockbridge moved for summary judgment seeking to dismiss the Labor Law 200, 241(6) and 240(1) causes of action asserted against it arguing that it had no control over the plaintiff, that plaintiff did not cite to an applicable industrial code provision, and that plaintiff was the sole proximate cause of his own accident.  The court granted Stockbridge’s motion with respect to the Labor Law 200 and 241(6) causes of action, finding that Stockbridge did not control plaintiff’s work and that the industrial code provision cited applied to the approval and maintenance of certain safety devices that were not actually utilized at the site.  The court denied the motion with respect to Labor Law 240(1) since there was a question of fact as to whether there were scaffolds in place and whether plaintiff fell backward or jumped off the retaining wall.

http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202542556067

In November 2011, the Pennsylvania Superior Court decided in Com. v. Harris, 32 A.3d 243, 247-251, 2011 WL 5964550, 3 (Pa. – 7 (Pa. (Pa.,2011), that orders rejecting claims of privilege and requiring disclosures are immediately appealable.   As a general rule, Pennsylvania law permits only appeals from final orders. See Pa.R.A.P. 341 (“[A]n appeal may be taken as of right from any final order.”).  However the court will allow an immediate appeal if the question is collateral to the main cause of action, the right involved is too important to be denied review; and (3) the claim will be irreparably lost if the review is postponed until after final judgment. Pa.R.A.P. 313(b). In 1999, the Pennsylvania Supreme Court determined that orders overruling claims of privilege and requiring disclosures were immediately appealable based upon 313(b).  See Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999).

However, recently, in Mohawk Industries, Inc. v. Carpenter, 130 S.Ct. 599 (U.S.,2009), the United States Supreme Court reached the contrary result. The Supreme Court held that rulings adverse to the attorney-client privilege are not eligible for collateral order appeals because such orders are not effectively unreviewable after final judgment. Id. at 606. It stated that even if disclosure is improper, a litigant request a new trial.

Despite Mohawk, the court in Com v. Harris decided not to overturn its interpretation of Rule 313(b).  Starting that “we are particularly unconvinced that an appeal after final judgment is an adequate vehicle for vindicating a claim of privilege”, the court decided that the frank discussions fostered by privilege rules should be protected as a matter of public policy. Com. at 249.   As such, Pennsylvania will continue to allow issues of privilege to be immediately appealable as of right.