The decisions considering what constitutes a violation of Section 240 (1) of New York’s Labor Law could fill a small library. The stakes are not purely academic since a Section 240 (1) violation imposes non-delegable, strict liability on owners and general contractors. Even worse, a jury cannot even consider the comparative negligence of the injured plaintiff where such a violation is proven unless the worker’s negligence is the sole proximate cause of the accident.

With this background in mind, in DeGabriel v. Strong Place Realty, LLC, a motion court recently examined, among other things, whether section 240 (1) liability could be imposed where a steel I beam fell on a worker at a construction site. The beam was one of several stacked unsecured on the floor and was about 40 inches off the ground. The question was whether the beam posed an “elevation related” risk sufficient to trigger the statute’s protection. The motion court held that a mere 40 inch height elevation was insufficient to implicate section 240 (1). In granting the defendant’s motion for summary judgement and dismissing the 240 (1) count, the court relied on the fact that the beams were stacked on the floor at a height of less than four feet and did not extend above plaintiff’s head.

The courts continue to struggle with the scope of section 240 (1) liability with a trend emerging that the statute is not triggered in every situation involving a falling object or worker. Perhaps a more realistic view of the statute and the harm it was meant to eliminate will help stimulate the construction industry by signaling to contractors and their insurers that the industry will not be subject to unreasonable liability for contruction related accidents. Or at least that is the hope.

If you have any questions regarding this post, please email Paul at .

http://www.nycourts.gov/reporter/3dseries/2009/2009_52042.htm

Deciding whether to move to disqualify counsel is an interesting tactical decision that presents itself from time to time. Recently, a New York federal appellate court made disqualification more difficult in circumstances where the basis of the motion is that the law firm trying the case is also going to present witnesses that will testify at trial on behalf of their client.

In Murray v. Metropolitan Life Ins. Co., plaintiffs were policyholders in Met Life Insurance before it demutualized, and sought to disqualify Debevoise & Plimpton LLP, from serving a trial counsel in a class-action suit because: 1) Debevoise represented Met Life in the demutualization process, and thus also represented the policy holders; and 2) other Debevoise attorneys were going to testify at the trial where their partners were acting as trial counsel. The Second Circuit Court of Appeals reversed the trial court order and ruled against disqualification.

First, the court held that the plaintiffs were not clients of Debevoise. Outside counsel to a corporation represent the corporation, not its shareholders or other constituents, and the same principle applies to a mutual company.

On the second issue, generally, Rule 3.7 (a) of the New York Rules of Professional provides, with certain exceptions, that “a lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. Subsection (b) addresses “imputation:” “A lawyer may not act as an advocate before a tribunal in a matter if … another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client.”

The Court held that these motions are subject to strict scrutiny because they are subject to abuse, and the Court crafted a new rule that required plaintiff to establish, by clear and convincing evidence that: (a) the witness will provide testimony prejudicial to the client; and (b) the integrity of the judicial system will suffer as a result.

In reversing the trial Court, the Second Circuit found that the Debevoise attorneys that were going to testify were primarily going to authenticate documents. The Court also held that other factors, including plaintiff’s delay in filing the motion, all weighed against disqualification.

http://caselaw.lp.findlaw.com/data2/circs/2nd/093716p.pdf

Even if you have the right of way you can still be found partially at fault if an accident results from your failure to use reasonable care to avoid the collision.

In Cox v. Weil, the plaintiff sought to recover for injuries stemming from a three car pile up at an intersection that was controlled by a traffic light. Weil moved for summary judgment arguing that the green light was in his favor and the co-defendant ran the red light. Weil admitted, however, that he did not see the other vehicle prior to impact.

In denying the motion for summary judgment, the court held that drivers are entitled to a reasonable expectation that other drivers will obey the traffic laws and yield the right of way, but a driver who lawfully enters an intersection after the light turns green must still exercise reasonable care to avoid the accident.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07222.htm

In the summer of 2008, we reported that New York wanted to create its own version of Lloyd’s — http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=171.   The fall 2008 financial crisis quickly put that idea to rest. Now, however, the idea has been resurrected and there is again talk that the colonies will try to match their British brethren in coffee and alcohol consumption!

http://www.businessinsurance.com/article/20091015/NEWS/910159991.

In the case of Kulik v. Mash, the plaintiff arrived for work early, so he decided to nap in his car in his employer’s parking lot. While he was napping, a co-worker arriving for work rammed his car into the plaintiff’s thereby causing injuries. The question posited for the court was whether the Worker’s Compensation Act barred coverage. The Superior Court agreed with the trial court and held that it did. The court held that “waiting for work was within the scope of employment.”

http://pdf.wcmlaw.com/pdf/Sleeping Employee.pdf

In the case of Ario v. Reliance Insurance, the PA Supreme Court was called upon to decide, under Section 544 of the Insurance Department Act, 40 P.S. § 221.44, what priority classification “ought to be assigned to a subrogation claim held by an insurance company against an insolvent insurer under the Act.” The court held, in a case of first impression, that subrogation claims should be assigned a section “g” classification, which puts the subrogating insurer seventh in line for payment. In other words, the subrogating insurer would likely have better luck getting blood from a stone.

http://www.pacourts.us/OpPosting/Supreme/out/J-11-2009mo.pdf

In Andrews v. New York City Hous. Auth., the decedent was killed in an apartment fire, and his family sued the New York City Housing Authority, which managed the apartment building, for personal injuries and wrongful death. The trial court denied the Housing Authority’s motion for summary judgment.

The Appellate Division reversed the trial court’s decision, holding that there was no evidence of negligent maintenance by the Housing Authority. The Housing Authority showed that the fire marshal determined that the cause of the fire was an electrical cord that ignited combustible material, not the nearby outlet or receptacles.

The Appellate Division found that plaintiff failed to raise a question of fact and rejected plaintiff’s fire expert’s assertion that the fire originated from an electrical fault within the outlet. Plaintiff’s expert provided no factual support for his conclusions and failed to provide an explanation as to how the fire marshal’s findings were incorrect.

This decision reinforces the court’s position that mere speculation and unsupported allegations are insufficient to defeat a motion for summary judgment.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07213.htm

In Clark v. The City of New York, the plaintiff sought to recover damages for personal injuries he sustained when he rode his motorcycle over a manhole cover. Eight months before the accident, the City received a complaint about the manhole cover and completed a service request inspection detail report. The City later determined that the cover belonged to a phone utility and took no further action. The City moved for summary judgment arguing that the plaintiff failed to comply with the prior written notice requirement of Administrative Code Section 7201. In denying the City’s motion, the court held that even if the cover did not belong to the City, the written acknowledgement of the allegedly dangerous condition on the public roadway was sufficient to give the City notice of the condition.

Thanks to Edward Lomena for his contribution to this post.

http://www.law.com/jsp/nylj/decisions.jsp

In Shannea M. v. City of New York, the jury found that the City of New York was not negligent for the plaintiff’s injuries that she sustained when she was allegedly raped in a public middle school bathroom. The plaintiff appealed taking issue with the trial court’s instruction to the jury that the City could not be held negligent unless it had actual or constructive notice of similar, prior incidents in school bathrooms. Despite the plaintiff’s argument that no notice was required, the Second Department upheld the jury instruction, emphasizing that schools are not insurers of students’ safety and they are simply obligated to exercise such care as a parent of ordinary prudence would observe under comparable circumstances. Moreover, the Second Department held that a failure to provide adequate supervision requires evidence that authorities had specific knowledge or notice of the conduct that caused the injury.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07245.htm

Wade Clark Mulcahy to conduct market seminar on November 3, 2009 for the International Underwriting Association in London on modern trends in U.S. coverage litigation.

This seminar is designed to alert Brokers, Underwriters and Claim Professionals to emerging discovery techniques used by the Plaintiff’s Bar to challenge coverage determinations. Attached is a detailed description of the market briefing. To reserve your place please email: .

IUA Circular