Monthly Archives: July 2013

Just Because the Ceiling Fell Does Not Mean Labor Law 240 Applies.

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In Flossos v. Waterside Redevelopment Co., plaintiff leaned a closed 4-foot A-frame ladder against a closet door and climbed up to paint without locking the horizontal bars.  While plaintiff was on the ladder, a piece of ceiling fell propelling plaintiff and the ladder to the floor.  Plaintiff sued alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common law negligence.  The lower court denied defendants’ motion to dismiss the Labor Law 240 cause of action.  On appeal, the Second Department reversed noting that plaintiff had to “show more than simply that an object fell causing injury.”  Plaintiff had to show (1) at the time the object fell, it was “being hoisted or secured” or had to be secured; and, (2) the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”  The court found that the ceiling was not “being hoisted or secured” as it was part of the permanent structure of the building, and plaintiff was provided with a ladder that was appropriate for the job.  The court dismissed the Labor Law 240 claim, but did not dismiss the common law negligence claim because the defendants failed to establish that the doctrine of res ipsa loquitur did not apply.

Not a complete victory, but with the Labor Law 240 claim out, the defendants can present plaintiff’s comparative negligence (i.e. the closed ladder).

Special thanks to Lora Gleicher for her contribution to this post.  For any questions contact ">.

What Were They Supposed to Do? A Rare Labor Law 240 Victory.

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In Tornabene v. NYC, Plaintiff was a utility worker working on underground conduits in an open trench.  The flange of an I-beam ran around the perimeter of the trench to hold steel plates in place when the trench was not in use.  Plaintiff stepped onto the flange and started walking toward the trench entrance when he fell in.  Plaintiff alleged that the defendants violated Labor Law §§240, 241(6) and 200.  Plaintiff moved for summary judgment on the Labor Law §240 claim, and defendants cross-moved to dismiss.  In dismissing the Labor Law §240 claim, the court found that since the open trench was required for plaintiff to work in, plaintiff was unable to demonstrate what safety devices should have been made available to protect him from falling into the trench.  The court declined to dismiss the Labor Law §241(6) claim on the basis that there was a question of fact as to whether the defendants violated an applicable Industrial Code provision requiring a barrier or safety railing guarding openings necessitated by work in progress.

Given the court’s holding on the 240 claim, the preservation of the 241(6) claim is somewhat odd.  Nonetheless, a 241(6) claim is more defensible than a 240 claim.  Defendants will take even the small victories.

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Policy Terms And Statute Of Limitation Applied To Bar Breach Of Contract And Bad Faith Claims (PA)

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In Thompson v. Certain Underwriters at Lloyd’s, the Philadelphia Court of Common Pleas granted Lloyd’s motion for judgment on the pleadings and ruled that Thompson’s breach of contract and bad faith claims against Lloyd’s were barred by a suit limitation provision in the policy at issue, as well as the expiration of the applicable two-year statute of limitations.  Accordingly, the court dismissed Thompson’s claims with prejudice.

Plaintiff Lopez T. Thompson filed a claim against his insurance policy issued by Certain Underwriters at Lloyd’s following a fire at his property.  Lloyd’s sent an adjuster to inspect the property and estimate the damages.  Thompson claims that he then contacted Llyod’s approximately 9 months later, demanding that his claim be settled.  Lloyd’s denied the claim shortly thereafter and Thompson responded by filing a writ of summons a few months later and a complaint five months after that alleging that the damage to his property was covered under his insurance policy.

Numerous amended complaints, objections and cross-claims were filed throughout the next year, until the court recently granted Lloyd’s motion for judgment on the pleadings.  The court noted that Thompson’s breach of contract claim failed to meet the policy’s requirement that such claims be brought within one year after the date of loss, barring his claim in light of Thompson’s failure to submit any proof that Lloyd’s had waived the suit-limitation provision.  Further, the court stated that even in light of Lloyd’s “long silence” regarding Thompson’s claim, the time limitation described in the policy started running, at the very latest, when Lloyd’s denied the claim, thus making Thompson’s claim untimely by more than a year.  As Thompson failed to provide a reasonable explanation as to why he did not commence his suit until 2012, the court dismissed the breach of contract claim.  Finally, the court pointed to the applicable two-year statute of limitations and held that Thompson’s bad faith claim was also barred.  The court noted that the statute of limitations also began to run against Thompson’s bad faith claim when Lloyd’s denied the claim.

Special thanks to Nicole Pedi for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

PA’s Third Circuit Revitalizes Rule 68 Offer of Judgment

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In Interfaith Community Organization v. Honeywell International, the Third Circuit revitalized the use of Federal Rule 68 Offer of Judgment in the context of environmental suits.  Under Rule 68, a defendant may serve on an opposing party an offer to allow judgment.  If the offer is not accept and the judgment that is eventually obtained is less favorable than the rejected offer, then the rejecting party must pay the costs incurred after the offer was made.  The purpose of this rule is to make a plaintiff carefully consider a settlement offer before rejecting it and continuing to litigate his or her claim.

Previously, courts had declined to use this rule because the cost-shifting provision was seen as inapposite to the goal of encouraging law firms to represent plaintiffs, especially in environmental actions.  This was due, in large part, to the fact that in environmental actions, certain statutes specifically allow for the recovery of attorney’s fees as part of the costs.  Thus to apply this rule, would force plaintiffs to risk paying their attorney’s fees, as well as costs to the opposing side and also risk losing their right to recover all post-offer attorney’s fees if they rejected a settlement offer.  Although, the court noted that this ruling might have a chilling effect on whether an attorney will take on a plaintiff’s environmental action, ultimately it held that applying the rule did not abridge or modify the plaintiff’s substantive rights and was thus valid.  Although, the ruling in this case is specific to environmental actions, it may ultimately have wider implications if other courts follow suit and continue to apply Rule 68; thus, making this rule a useful tool for defendants to encourage plaintiffs to enter into reasonable settlement agreements.

Special thanks to Colleen Hayes for her contributions to this post.  For more information, please contact Nicole Y. Brown at .

Curtains Closed on Lincoln Center and Metropolitan Opera’s Attempts to Escape Labor Law Liability (NY)

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In Mayo v. Metropolitan Opera Association, Inc., a subcontractor’s employee was injured while repainting the steel carriage rail for the Metropolitan Opera House’s automated window-washing system.  In order to access the steel carriage rail, the plaintiff testified that he had to climb a ladder located on the sixth floor of the Opera House and exit onto the roof through a hatch door in the ceiling.  Apparently, the hatch door was easy to open but difficult to close because of a broken hinge and required two hands to close it.  While attempting to close the hatch with two hands, the plaintiff fell from the ladder and was injured.  Both the Met and Lincoln Center moved for summary judgment on the plaintiff’s Labor Law § 240(1) claim.  Furthermore, Lincoln Center argued that the plaintiff’s Labor Law §200 and common-law negligence claims should be dismissed because it did not create or have any notice of a defect in the hatch door.

The Appellate Division’s opinion turned on the testimony by Lincoln Center’s chief engineer, who had opened and closed the hatch more than 100 times and testified that in order to close the hatch, a worker had to break three-point contact with the ladder and somehow wedge his body up against the concrete side of the hatch to safely reach up with both hands to close the door.  Ultimately, the court held that both the plaintiff’s testimony about the difficulty of reaching the roof, coupled with the chief engineer’s testimony demonstrated that the Met and Lincoln Center failed to provide adequate safety devices to protect the plaintiff from the risks associated with gaining access to the Opera House roof and steel carriage rail.  Additionally, the chief engineer’s testimony created a question of fact as to whether Lincoln Center had notice of the defect in the hatch door.

As an aside, while Lincoln Center’s counsel did not move for summary judgment on an out-of-possession landlord theory, they did attempt to raise the defense on appeal.  While the Appellate Division declined to consider the defense, it stated that even if it had, the chief engineer’s testimony would have been enough to create a question of fact as to whether Lincoln Center knew of a significant structural or design defect that was contrary to a specific statutory safety provision.

Special thanks to Michael Nunley for his contributions to this post.  For more information, please contact Nicole Y. Brown at .

WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel

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A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims.  He also handles first party property matters during  the claim investigation and in litigation.  A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law.  He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association.

If You Climb In The Saddle, Be Ready For The Ride – And The Fall (NY)

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In Fenty v. Seven Meadows Farms, Inc.,et al., the Appellate Division, Second Department affirmed summary judgment on the grounds that the plaintiff assumed the risk of falling off a horse while riding.

The Appellate Division held that under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation.  Further, if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty.

An awareness of a risk is to be assessed against the background of the skill and experience of the particular plaintiff.  In Fenty, the record demonstrated that plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding.

The Court ultimately held that the risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding.  While a party will be found not to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks, a party does assume the risk of an overall obvious risk.  Thus, a person should expect to get wet when jumping in the ocean.

Special thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Don’t Admit That! Notice To Admit Cannot Include Ultimate Issue in Case (NY)

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Parties often utilize a Notice to Admit in anticipation of trial, in order to stipulate to agreed upon issues, thereby saving time, expense and needless disputes prior to and during trial.  However, if an issue is not necessarily “agreed upon,” then a Notice to Admit is, technically, an inappropriate device.

In Ramcharran v. Airport Services New York , LLC, a plaintiff asked the Court to deem, via Notice to Admit, that on the date of loss, “the motor vehicle owned and operated by the defendants was in contact with the plaintiff.” Plaintiff served this Notice pre-discovery, and defendants clearly had objections to that unconfirmed admission.  After moving for a protective order as per the CPLR, Judge Hart in Queens Supreme Court denied defendant’s motion.

The Second Department reversed, citing both the inappropriate use of the protective order, and more importantly to attorneys, the defendants’ timely objection thereto via CPLR 3103 motion.  The lesson here is that the defendant’s motion for a protective order was timely – had counsel waited several months to so move, it is unclear when the Second Department would have been as receptive.

As an aside, attorneys should always read Notices to Admit carefully, as they may contain one prejudicial admission buried within several innocuous admissions, in an effort to “sneak a fastball past” opposing counsel.  While such a tactic could be considered unfair dealing, it’s always better to spot such dealing earlier than later.

Special thanks to Brian Gibbons for his contribution.

For more information contact Denise Fontana Ricci at .

 

WCM Achieves Dismissal of a Defamation Lawsuit Against a Law Firm

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New York, NY 

Partner Dennis Wade and associate Alison Weintraub received a complete pre-answer dismissal of plaintiff’s complaint in the case of Roth v. Tarter Krinsky & Drogin LLP, a defamation action brought in New York City Civil Court.  Roth, a former partner at Tarter Krinsky alleged that certain partners at his prior firm made defamatory and slanderous remarks causing harm to his business reputation.  The complaint, however, lacked the specificity required by the CPLR for a defamation action and we therefore argued that it should be dismissed.  In addition, we argued that the allegedly defamatory statements were protected by a common interest privilege, as any comments were made between attorneys within the law firm.  The court agreed both on specificity and privilege grounds and granted the motion to dismiss, while simultaneously denying Roth’s cross-motion request to replead.

MTA’s Self Critical Standard of Care Higher? … Not in the Courtroom (NY)

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In Williams v. New York City Tr. Auth., the First Department re-iterated a long-standing rule that a defendant cannot be held to a higher standard of care than required by the common law.

At the second trial of liability—the first judgment was vacated for a different reason—the plaintiff introduced testimony from an MTA investigator that the operator of the bus that struck plaintiff was driving too close to the curb. The investigator, however, testified that the MTA’s operating criteria and standards are much higher than anyone else’s.

On appeal, the First Department vacated the judgment, finding that the admission of the investigator’s testimony that the MTA holds its driver to a higher standard of care than required by the common law was clearly erroneous.

Let this be a reminder to all companies, common carriers especially: although your regulations may hold your employees to a higher standard, for the purposes of legal liability, what matters is the common law.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Ricci at .