Has Runner Run Its Course?

For years liability under Section Labor Law 240 has continued to expand. Runner v. New York Stock Exch., Inc., probably one of the most oft cited Labor Law cases,has played a large role in this expansion.  However, the USDC for the Northern District of New York’s decision in Diaz v. Globalfoundries U.S. Inc. may help to put an end to Runner’s expansion of Labor Law 240 liability.

In Runner, the plaintiff along with several co-workers was attempting to move an 800-pound reel of wire down four stairs.  One end of a rope was tied around the reel and the other end was looped around a metal bar placed against a doorframe.  The plaintiff, who was serving as a counterweight to this makeshift pulley was injured when he was dragged into the pulley mechanism and towards the metal bar by the reel’s rapid descent.

In Diaz, the plaintiff, an HVAC worker, was on a ladder approximately sixteen feet off the ground installing a ventilation door/cap on a branch of ductwork.  According to the plaintiff, he used a vise grip/clamp to attach the rope to the door, went up the ladder and then hoisted the door up from the floor to the ventilation duct using the rope. He also confirmed that nothing fell on him either while he was on the ladder or the ground. Diaz contended that his injuries, like the injuries sustained by the plaintiff in Runner, were the direct consequence of a failure to provide adequate protection against a risk arising from a significant elevation differential.

Applying New York law, the federal court construed Runner quite differently, providing defense attorneys with a possible defense to utilize when faced with a non-gravity related Labor Law case.  In so doing, the court noted that because Runner cannot properly be read to eliminate the element of a fall or descent, it does not support recovery under section 240(1) for an injury occurring when a worker attempts to lift an inert weight. The Court concluded that the plaintiff’s claim was not aided by the fact that he had raised the duct door from a lower level to an elevated height and because there was no fall or descent, his injury did not directly flow from the force of gravity to an object or person within the meaning of Runner and other New York high court authority.

Accordingly, this case provides authority for defendants to oppose or move for summary judgment in an alleged falling object case where the object neither falls nor descends.

Thanks to Alicia Sklan for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

PA Supreme Court Expected To Rule On Multi-Million Dollar Insurance Cases

The Pennsylvania Supreme Court is expected to hear argument on various multi-million dollar insurance cases this month covering a wide gambit of issues, including testimony by a treating physician in Polett v. Public Communications and indemnification in Babcock & Wilcox.

In Polett v. Public Communications, the plaintiff claimed she suffered a right knee injury while filming a promotional video for an artificial knee implant.  The jury ultimately found in favor of the plaintiff awarding her $27.6 million in damages.  However, the jury’s verdict was reversed, in part, based on the defendant’s claim that the plaintiff did not disclose prior to trial that her treating physician would be testifying as an expert witness.  On appeal, the plaintiff argued that her treating physician was exempt from the rule that all experts need to be disclosed prior to trial because he was her treating physician.  The Pennsylvania Supreme Court granted the plaintiff’s appeal and will be hearing argument on whether the trial court judge’s allowance of the plaintiff’s treating physician to give expert testimony on causation was appropriate given the judge’s finding that the physician reached his opinion during the course of treatment and before litigation was anticipated.

In Babcock & Wilcox, the Pennsylvania Superior Court held that when an insurer agrees to defend its insured pursuant to a reservation of rights in connection to a lawsuit, the insured may either accept the insurer’s defense, which would result in the insured being bound by the policy’s consent-to-settle provision or retain its own counsel, allowing the insured to control the litigation (however, these costs would only be covered by the insurer so long as they were found to be fair and reasonable).  The Superior Court noted the lack of Pennsylvania case law on an insurer’s obligation in connection to a policy’s consent-to-settle provision.  As such, the Pennsylvania Supreme Court will hear argument on whether the Superior Court properly held that when an insured settles a lawsuit, after rejecting an insurer’s defense, the insurer is only obligated to cover the amount of the settlement up to the policy limits if the settlement was reasonable and not entered into in bad faith.

Thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

Ordering Materials Doesn’t Make You A General Contractor (NJ)

In the recent unreported decision of Andrews v. Jerud, Jeffrey Andrews filed suit for injuries he sustained while delivering windows to a construction site on which David Jerud was building a new home.  Although Jerud, a periodontist, had no training in construction, he ordered and purchased the construction materials and was onsite almost daily to coordinate with the contractors. Jerud had ordered the windows from Andrew’s employer, Universal Supply Company.  Andrews was injured while inside Universal’s trailer when a window was dropped onto the back of his legs during the unloading process.

The trial court granted Jerud summary judgment finding that he was not acting as the general contractor on the date of the accident and, therefore, did not have a duty to direct and control the methods of the subcontractors.  Andrews appealed, arguing that Jerud retained control over the subcontractors on site and, therefore, qualified as a general contractor. Andrews pointed out that Jerud had previously supervised the construction of a house on the adjacent lot; had formed his own construction company. And had also been involved in rehabbing several other properties without hiring a general contractor.

The Appellate Court upheld the trial court’s decision, finding that Jerud never retained control over the manner and means of the construction work.  The Court further found that Andrews’ liability expert’s report was not enough to preclude summary judgment.  Although the expert had opined that Jerud owed a legal duty to the plaintiff, the court found that the issues of whether a defendant owes a legal duty to another and the scope of that duty, are generally questions of law for the court.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .

Not Every Fall At A Construction Site Is A NY Labor Law 240 Fall

In Villalba v. Robo-Braking Co., Inc., plaintiff, a drilling foreman for the general contractor on a construction project witnessed a coworker accidentally create a 14” by 16” hole on a platform with a machine.  Plaintiff called a carpenter to repair the hole.  Approximately 45 minutes later, plaintiff was helping move another machine backward on the platform when he partially fell into the 14” to 16” hole.  Plaintiff sued the owner and construction manager for violations of New York Labor Law 240, among other claims.  Plaintiff and defendants moved for summary judgment on the Labor Law 240 claim.  The court found that plaintiff did not suffer an injury caused by an “elevation-related hazard.”  While noting that the case law in similar situations was slightly inconsistent, the court followed the majority of Second Department decisions finding that a worker’s fall through a relatively small hole that happens to be at an elevation is “the type of ordinary and usual peril a worker is commonly exposed to at a construction site” and does not fall within §240(1)’s ambit.

The takeaway from this case is that measurements matter.  Here, a 14” to 16” hole did not constitute a Labor Law 240 claim, but in other cases, slightly larger holes will constitute a Labor Law 240 claim.  It is important for defense attorneys to be prepared to provide evidence as to the size of a hole, or the distance the plaintiff fell to properly defend the claim.

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Forgot An Important Deposition Question? You May Still Get A Chance To Explore At Trial (NY)

When cross-examining a witness at trial, the general rule is that an attorney may question a witness with respect to specific immoral, vicious or criminal acts that have a bearing on the witness’ credibility. In a recent decision from the Appellate Division, Fourth Department, this rule was upheld when an attorney attempted to question a plaintiff about information in her federal tax returns that the attorney believed to be inaccurate.

In Young v. Lacy, the plaintiff was injured in a motor vehicle accident and was awarded significant damages at the conclusion of the trial. On appeal, defense counsel argued that the lower court erred in refusing to allow her attorney to cross-examine Young about her federal tax returns. Specifically, defense counsel wanted to ask Young why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. The lower court precluded defense counsel from asking these questions explaining that, because they had not questioned Young about her taxes at her deposition, defense counsel was improperly trying to “ambush” her at trial.

The Fourth Department disagreed and reasoned that defense counsel had a good faith basis to ask Young about the propriety of her filing status. The Court stated that while the nature and extent of cross-examination such as this is discretionary with the trial court, any evidence that Young may have committed tax fraud had “some tendency to show moral turpitude to be relevant on the credibility issue.” Because Young’s credibility was central to several close issues at trial including proximate cause, serious injury and damages, the Court reversed the order and judgment from the trial court and granted a new trial on Young’s cause of action.

Defendants can and should use cross-examination as an opportunity to impeach a plaintiff’s credibility where it is appropriate. Even in a case like Young where certain questions were not asked during a plaintiff’s deposition, attorneys can always ask new questions at trial, so long as they are not using extrinsic evidence to impeach a witness’ credibility. Depositions take place before discovery is complete. That is the nature of a deposition – to gather facts. If an attorney does not have sufficient information to ask what may turn out to be a key question, he or she may not be precluded from that line of questioning should the case proceed to trial.

Thanks to Jeremy E. Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

No Adverse Inference Charge For Unavailable Expert (NJ)

In the recent decision of Washington v. Carlos Perez, the New Jersey Supreme Court examined whether a party is entitled to an adverse inference charge when the opposing party fails to produce a previously named expert witness at trial.

In Washington, the plaintiff was involved in a motor vehicle accident, and alleged injuries to her cervical spine.  The defendants served medical expert reports stating that the plaintiff’s injuries were an exacerbation of pre-existing injuries.  Although the defendants’ medical experts were named as experts who were expected to testify at trial, they were never called to testify by the defense. In his summation, the plaintiff’s attorney focused on the uncalled experts, suggesting that the defendants had lied to the jury. The court entered an adverse inference charge, instructing that the jury could infer that the testimony of the defendants’ medical experts would be adverse to defendants’ interests. The jury eventually awarded the plaintiff $742,000.

The defendants moved for a new trial, stating that their medical expert had been unavailable to testify at trial.  The trial court denied the motion, but the Appellate Division reversed, and remanded the case for a new trial.  The Supreme Court agreed with the Appellate Division finding that, given the significant distinction between fact and expert witnesses, and the array of reasons why a party may choose not to call a previously designated expert witness, an adverse inference charge should rarely be invoked to address the absence of an expert.

Thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Y. Brown at .

Necessary Pleadings Required For A DJ Complaint (PA)

In Kofsky v. Unum Life Ins. Co. of America, Kofsky filed a declaratory judgment action against his insurer and broker alleging that the defendants unilaterally canceled his insurance policy on an undetermined date without prior notice, despite his premium payment and request that his policy be reinstated.  Kofsky sought damages based on fraud, breach of fiduciary duty and bad faith.

The fraud claim was dismissed as Kofsky failed to meet the heightened pleading standards of the Federal Rules and the court refused to relax the standards as the necessary factual information was not within the defendants’ control.  The court noted that there was no reason that Kofsky could not have identified in his complaint the misrepresentations that he alleged were made to him by the defendants.

The court also dismissed his breach of fiduciary claim as Kofsky failed to plead any facts in support of such a claim.  In reaching its determination, the court refused to adopt Kofsky’s argument that his claims for breach of the duty of good faith and fair dealing could act as a basis for his breach of fiduciary claim and noted that under Pennsylvania law, a breach of fiduciary claim could not be based on such things.

Finally, the court dismissed the bad faith claim against the broker, ruling that bad faith claims could only be brought against an insurer and not an insurance broker.  However, Kofsky’s claim against his insurer was allowed to proceed, because if the court accepted the allegations in the complaint as true, then the insurance company’s cancelation of the policy despite payment of the premium could constitute bad faith.

Thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

Beware Of The Runaway Juror

As defense counsel, we often seek college educated and employed individuals to sit as jurors. However, those who have jobs are often too busy to serve, may be distracted and even “run away.” In re Richard N. is a perfect example of how an educated and employed juror can prove problematic.

Richard N. was a juror on a summary jury trial and was required to report back for a second day to commence deliberations, but failed to appear and delayed the proceedings such that both parties eventually consented to replace him with an alternate juror. The Court was eventually able to reach Richard at which point he explained that he had a gone to see a doctor for a “neurological emergency” and gave a fictitious name when asked to identify the doctor. When the Court contacted him again to advise that a bench warrant would be issued if he did not explain himself, Richard confessed that he had lied about the medical emergency and had actually taught his course at a local college instead of reporting to jury duty. Shortly thereafter, the Court directed Richard to report for a hearing to determine an appropriate sanction, during which Richard admitted his wrongdoing and apologized profusely to the Court.

The Court emphasized that jury duty is “an honor and a privilege.” The Court ultimately decided against charging Richard with either civil or criminal contempt, but instead imposed a fine of $250 and mandated that Richard’s name remain in the general jury pool so that he may be called again for jury service in the near future. The Court noted that it was especially concerning that a college professional who is entrusted with the duty to lead by example for the students he teaches would behave in such an irresponsible fashion.

Most working adults have busy schedules and might even view jury service as nothing but a nuisance. But let Richard’s story serve as a lesson and keep in mind that when choosing a jury, give thoughtful consideration to those potential jurors that are begging to get off, since in the end their animosity at having been forced to sit on the jury can be turned against you.

Thanks to Jeremy E. Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

Summary Judgment Granted in Exceptional Res Ipsa Case (NY)

Claims under the doctrine of res ipsa loquitur—“the thing speaks for itself”—are rarely successful.  In order to establish a claim under this doctrine, a plaintiff must prove that the accident is of the kind that ordinary does not occur in the absence of negligence; the instrumentality that caused the accident was in the defendant’s exclusive control; and the accident was not due to any action on the plaintiff’s part.  In Barney-Yeboah v Metro-North Commuter R.R., the First Department reversed the lower court’s order that denied the plaintiff’s motion for partial summary judgment and, in so doing, noted that while rarely granted, summary judgment is appropriate in “exceptional” res ipsa cases where the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of the defendant’s negligence is inescapable.

Barney-Yeboah was a passenger on a Metro North train when she was injured after a ceiling panel in the train car in which she was seated swung open and struck her in the head.  In support of her summary judgment motion, Barney-Yeboah submitted her deposition testimony along with the deposition testimony of the defendant’s foreman.  Metro North conceded the first and third res ipsa elements but argued that it did not have exclusive control over the ceiling panels in the train car.  On this point, the foreman described the panel as being fastened to the ceiling with four screws, two safety latches and a safety chain and testified that to his knowledge only Metro North personnel accessed the ceiling panels.  In opposition, Metro North only offered an attorney affirmation in which the attorney argued, without proof that the only logical conclusion was that the accident was caused by unauthorized individuals tampering with the ceiling panel.

The First Department held that counsel’s speculation as to what might have happened is insufficient to defeat the plaintiff’s motion, as Metro North failed to offer any reason to accept the unlikely theory that a train passenger had either the tools or the inclination to tamper with the overhead panel.  As such, the evidence offered by the defendant was insufficient to raise an issue of fact as to its exclusive control over the overhead train panel and summary judgment in favor of plaintiff on the issue of liability was appropriate.

Thanks to Alicia Sklan for her contribution to this post.  For more information, please contact Nicole Y. Brown at .

Construction Double Jeopardy (NY)?

In Carrasco v. Weissman, the Second Department was faced with an interesting question regarding collateral estoppel and suits involving New York’s Labor Law. By way of background, the plaintiff was injured when he and a coworker were installing plate glass window panes in a building under construction. While the plaintiff was standing on the ground and his coworker was standing on a ladder, they lifted a glass window pane together in order to install it. The plaintiff tripped on a piece of brick causing the pane to split in half. The glass then struck the plaintiff and his coworker.

The plaintiff sued the general contractor, NCJ Development, for his personal injuries under a common law negligence theory, as well as for claimed violations of §§ 200, 240(1) and 241(6) of the Labor Law. NCJ argued that the plaintiff was barred from suing them under the doctrine of collateral estoppel because the lower court had already granted NCJ summary judgment in the coworker’s suit against them. Collateral estoppel bans a party from litigating an issue that was already raised in a prior action against the same defendant regardless of whether the courts or causes of actions are the same.

The Second Department held that collateral estoppel did not apply to this case because the plaintiff was not a party to the coworker’s case. The court explained that although the two cases were joined for trial the plaintiff was not given a fair opportunity to oppose NCJ’s summary judgment motion before the lower court because he was not a party to that case. Thus, the court denied the NCJ’s collateral estoppel argument.

Thanks to Moya O’Connor for her contribution to this post. For more information, please contact Nicole Y. Brown at .