Petzl America, Inc. manufactured a harness for use by people climbing wall-climbing systems. They sold such a harness to Sport Rock International, Inc., which incorporated it into a wall climbing system that they manufactured. The system was then installed in a gym. Joseph Anaya fell while climbing the wall because an employee at the gym had attached the safety line to the wrong place on the harness. Anaya filed suit.

American Casualty covered Petzl. The American Casualty policy named Sport Rock as an additional insured and contained an “other insurance” clause that said that the coverage was primary and that if there were other coverage, “we will share with all that other insurance by…” equal shares or in proportion to policy limits depending on what the other policy permits.

Evanston Insurance Company covered Sport Rock. The Evanston policy said that “When you are added to a manufacturer’s or distributor’s policy as an additional insured….the coverage afforded under this Coverage Part will be excess ….”

American Casualty disputed its obligation to bear the entire defense, pointing out that some of the claims against Sport Rock arose from its own alleged negligence, separate and apart from the product defect allegations surrounding the manufacture of the harness. Thus, reasoned, American Casualty, Evanston should bear part of the cost of defense.

The court ruled that the clause in the Evanston policy declaring itself excess to the American Casualty policy was to be respected. The court held that the Evanston policy “is rendered excess by reason of the competing “other insurance” clauses” and “will not become obligated to defend the insured until the other carrier’s coverage has been exhausted.”

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03794.htm

In Rico-Castro v. Do & Co. New York Catering, Inc. (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01789.htm) the plaintiff was working on an A-frame ladder that he left in the closed position and leaned up against a wall. The ladder slipped, and the plaintiff fell to the floor and was injured. A New York appellate court granted summary judgment to the plaintiff on Labor Law section 240 even though he misused the ladder (i.e., leaving it closed), ruling that the misuse was not the “sole proximate cause” of the accident and injury.

Justin Rowe contributed this post.

A plaintiff in Ocean County, New Jersey asked for a six-month delay in the start of her trial so that she could care for her gravely ill father in Florida. The court refused the request and dismissed the case with prejudice. The appellate court sympathized with the plaintiff’s “Sophie’s Choice” dilemma and restored her case to the trial docket. http://www.judiciary.state.nj.us/opinions/a4400-07.pdf

In Riley v. Keenan, the plaintiff was injured by a sleepy, drunk driver. The plaintiff sued the driver’s employer, claiming that the employer overworked the driver to the point of exhaustion and was thus responsible for the happening of the accident. The court threw out the claim, noting that the driver was not acting within the scope of his employment at the time of the accident. The court added that the driver’s choice to drink was an intervening act that broke any connection between work fatigue and the accident. www.judiciary.state.nj.us/opinions/a6054-06.pdf

In Sorbara Construction Corp. v. AIU Ins. Co., an insured’s employee was injured on the job and filed a claim with the workers comp carrier. The same carrier wrote the insured’s liability policy. The insured did not give notice under its liability policy until five years after the loss, when the insured was impleaded into the case. The court ruled that notice under the liability policy was late and the carrier had no obligation to defend or indemnify its insured. The fact that the carrier had timely notice of the loss under the workers comp policy did not change this result. http://www.nycourts.gov/reporter/3dseries/2008/2008_07949.htm.

Posted by Jung Lee.

In Munsch v. 205-209 East 57th Street Associates, LLC, a gemeral contractor hired an electrical contractor to install temporary lighting at a job site. The plaintiff, who worked at the site for another subcontractor, tripped on wood scraps or electrical debris because, he said, no lighting had been installed. He sued the electrician for negligence. The court ruled that the plaintiff was within his rights to assert such a negligence claim based upon the electrician’s alleged breach of the electrician’s contract with the general contractor.

Posted by Maju Varghese.

To mount a 241(6) claim, it must be properly supported by a violation of a concrete provision of Industrial Code, part 23.

In Nostrom v. A.W. Chesteron Co., plaintiff commenced a wrongful death action due to plaintiff’s decedent’s exposure to asbestos in the workplace. While plaintiff’s complaint was pursuant New York State Labor Law 241(6), she solely relied upon two Industrial Code, part 12 regulations, 12 NYCRR 12-1.4(b)(3),(4) and 12-1.6(a). The landowner and general contractor defendants successfully moved for summary judgment in the trial court.

On appeal, the Appellate Division, First Department, affirmed the lower court’s decision, ruling that it is the provisions of part 23 of the Indutrial Code that serve as the predicate for Labor Law 241(6) claims. The Court found that the Industrial Code part 12 regulations that plaintiff relied on do not support an action for owner/contractor vicarious liability under Labor Law 241(6) since part 12 (“Control of Air Contaminants”) gives no indication either that it was enacted pursuant to Labor Law 241(6) or that it contemplates owner/contractor vicarious liability. Moreover, the Court held that part 12 regulations cited by plaintiff were not sufficiently specific to support a Labor Law 241(6) claim for asbestos-related injury.

Thanks to Robin Green for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_00581.htm

While the New York City sidewalk law requires landowners to take care of the city-owned sidewalks that adjoin their property, the courts have made it clear that this duty does not extend to tree-wells and curbs, which are not part of the sidewalk. In a recent case in New York County, this distinction proved more difficult to define in practice than one might suspect. A pedestrian tripped on a defect in the concrete but the court was unable to decide on summary judgment whether the defect was in the sidewalk or in the curb. Photos of the defect and an affidavit from an engineer did nothing to solve the problem, so it goes to a jury. It seems that there are curbs and there are curbs. Some are separate and distinct curb stones, while others are just an extension of the concrete that was poured when the sidewalk was built. So far tree wells remain clear and easy to define but not so the curb. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50194.htm

In Cook v. Schapiro, defendant Elaine Schapiro, an eighty-year old woman, purchased a car from co-defendant Mt. Kisco Chevrolet Cadillac, Inc. Two days later, while Ms. Schapiro operated her vehicle, she struck a car and fatally injured the plaintiffs’ decedent. Plaintiffs commenced an action, in part, against Mt. Kisco Chevrolet, accusing it of negligently entrusting a car to Ms. Schapiro. Mt. Kisco Chevrolet’s motion to dismiss for failing to state a cause of action pursuant CPLR §3211(a) (7) was denied by the trial court.

The Appellate Division, Second Department reversed the trial court’s order, converted the motion to one for summary judgment pursuant CPLR §3211(c) and granted the motion to dismiss. The Court held that since the car dealership possessed no “special knowledge” regarding Ms. Schapiro or the car, there can be no viable cause of action for negligent entrustment. Moreover, the Court refused to impose a higher a duty upon Mt. Kisco Chevrolet to evaluate ability or mental or physical fitness of its customers.

http://www.nycourts.gov/reporter/3dseries/2009/2009_00328.htm

In Firemen’s Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building.

After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff’s expert advised the plaintff’s subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants’ spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert’s report, that the stove held the key to the cause and origin of the fire.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50066.htm