Handling Heavy Buckets Not an Elevation Related Risk (NY)

In Ciechorski v. City of New York, the Appellate Division recently distinguished between “usual and ordinary” dangers of a construction site versus “the extraordinary elevation risks envisioned by the Labor Law Section 240(1).” The Court also addressed the distinction between defendants who actually determine the means and methods of the work versus those who merely exercise general oversight over the performance of the work.

Plaintiff claimed he suffered pain allegedly caused by repeatedly being handed heavy buckets filled with epoxy from workers at a higher level and then transporting the buckets by hand on his own level. Plaintiff claimed he was required to catch buckets in mid-air, after they were dropped by workers standing on a barge about five or six feet above the float stage where he was standing, and this took place over the course of several weeks.

In granting summary judgment in favor of the City of New York, dismissing plaintiff’s complaint, the Appellate Division determined that plaintiff’s claims were unsupported by the record, even when viewed in the light most favorable to plaintiff. The Court noted that plaintiff testified that the barge workers leaned, bent down, or kneeled, as necessary, to hand the buckets to plaintiff, allowing him to grasp each bucket before it was released. As such, the Court determined that the type of activity plaintiff described and complained about was more in line with the usual and ordinary dangers of a construction site as opposed to the extraordinary elevation risks encompassed by the Labor Law.

Furthermore, the Appellate Division affirmed the lower court’s dismissal of plaintiff’s Labor Law Section 200 claim and his common law negligence claims as against defendant Hudson Meridian Construction Group, LLC because that defendant did not determine the means and methods of the work, but rather, exercised only general oversight over the performance of the work and site safety conditions, which is insufficient to trigger liability. In contrast, the means and methods of the work were determined solely by plaintiff’s employer, a non-party to the case.

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono with any questions.

Watch Where You Step: 2nd Department Affirms Sole Proximate Cause Defense (NY)

New York Labor Law §§ 240(1), 241(6) are notoriously plaintiff-friendly, and liability defenses are often limited at trial.  Defenses usually center on the sole proximate cause argument, which is often difficult to prove.  However, in Melendez v 778 Park Ave. Bldg. Corp., 2017 Slip Op 06175, the Second Department  affirmed the dismissal based on the sole proximate cause defense as well as other causation based arguments.

Plaintiff and coworkers were erecting a scaffold in the yard area of the defendant’s building to make a platform even with the sidewalk.  Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall.  Plaintiff alleged violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence against the owner and general contractor.  The Supreme Court granted the portions of defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) cause of action.  The plaintiff appealed.

The Appellate Division affirmed the Supreme Court’s judgment.  The Court opined that in order to succeed on a cause of action alleged violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that violation was a proximate cause of the accident.  In this case, the plaintiff was found to be sole proximate cause as he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam rather than standing upon the secured planking that was available to him and which he had used in the time leading up to the accident.

The Appellate Division affirmed the dismissal of the Labor Law § 241(6) cause of action because the alleged violations of the Industrial Code provisions were not a proximate cause of the plaintiff’s injuries, or conversely, did not apply to the facts of this case.  The Court also affirmed the dismissals of the Labor Law § 200 and common-law negligence actions as against the general contractor, determining that the plaintiff’s injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed.  On that basis, a defendant must have the authority to exercise supervision and control over the work to be liable.  Here, the defendant did not have the authority to control, direct or supervise the method or manner in which the work was performed.

The sole proximate cause defense is case specific and often difficult to prove.  However, this case provides an example of the Appellate Division rendering a decision, taking the events leading up to the accident into fair account.   The Court’s common sense analysis resulted in a properly affirmed dismissal. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

First Department Sustains Multi-Million Pre-Impact Terror Awards Following Crane Collapse (NY)

In Matter of 91st St. Crane Collapse Litigation, the First Department recently upheld a multi-million dollar jury award for pre-impact terror, potentially altering the landscape of such awards in the future.  At the very least, this decision will alter how plaintiffs litigate pre-impact terror.  (There were also significant awards for conscious pain and suffering, and punitive damages, which we will not address in this post.)

The case arose from two consolidated wrongful death actions following a catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, which killed the crane operator, Donald Leo, and another construction worker, Kurtaj.

The crane  was 205 feet high, had four main components: a tower, a cab, a boom, and a counterweight assembly. The counterweight assembly and boom rested on a turntable, which allowed the whole crane to rotate. During the trial, which lasted almost a year, evidence came forth that prior to bringing the crane to the site, a bearing ring in the turntable developed a crack and required replacement. Plaintiff NY Crane, at the direction of its owner, Plaintiff James Lomma, chose to replace this key part of the crane using a Chinese company that it found through a Google search, instead of a more expensive, but reputable American company. Even after the Chinese company expressed doubt that it could correctly assemble the bearing ring, plaintiff’s chose to move forward. Before the crane could be used again, the new bearing had to be certified by the New York City Department of Buildings. Lomma and NY Crane contacted a number of engineers, all of whom refused to certify that the bearing was safe. Despite this, Lomma, who was not an engineer, self-certified the part and expedited the DOB process so that the crane could go back to work.

According to the Court, the plaintiffs’ deaths “arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course.” On May 30, 2008, the bearing ring failed. At approximately 8:00 a.m., the crane began to tip backwards, causing the boom to flip and strike the building across the street. Witnesses testified that they saw Leo, the crane’s operator, visibly panicked inside the cab as the crane tipped backwards, bounced off another building, and then ultimately fell to the ground. They testified that they saw him praying and trying to brace himself against the cab glass as he plummeted toward the ground. Similarly, witnessed testified that Kurtaj, who was on the ground, saw the crane falling toward him and yelled to his coworkers, “Run, run, the crane is coming down.”

Medical testimony showed that both Leo and Kurtaj were aware of their impending deaths, and that neither of their deaths were immediate. Based on Kurtaj’s defensive wounds, a medical expert testified that he tried to protect himself with his arms from falling debris. Rescue workers testified that Kurtaj was alive and conscious while trapped under the wreckage, and that he was heard screaming and in obvious pain. He had also been doused in diesel fuel, causing him to vomit and choke on noxious fumes and smoke. He was taken to the emergency room, where he died approximately four hours after his initial injury. Similarly, witnesses and EMS technicians testified that Leo was alive, with his eyes open and shaking, when they found him in the rubble. Rescue workers determined that his time of death was approximately 15 minutes after the accident.

A Manhattan jury awarded the decedents of plaintiff Leo $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages. The jury awarded the decedents of plaintiff Kurtaj 7.5 million for pre-impact terror, $24 million for pain and suffering, and $24 million in punitive damages. On appeal, a unanimous First Department slashed those awards, but still awarded $2.5 Million and $2 Million in pre-impact terror to Leo and Kurtaj, respectively. Decedents of plaintiff Leo ultimately received $5.5 million for pain and suffering and $8 million in punitive damages, while decedents of plaintiff Kurtaj received $7.5 million for pain and suffering and $9.5 million in punitive damages.

Even with these reduced awards, these are some of the largest pre-impact terror awards ever awarded in the State. Given the defendants’ actions, it is possible that these huge pre-impact terror were actualyl designed to punish Lomma’s “calculated decisions” that ultimately lead to the collapse.   In other words, the jury may have rendered a “punitive” pre-impact terror award here.  And even through the Court reduced the award, J. Webber nevertheless awarded more significant pre-impact terror damages than we commonly see.

Plaintiff’s attorneys in New York will almost certainly make concerted efforts to present specific evidence of pre-impact terror in wrongful death cases.  In this case, there was very specific evidence of the actions of both decedents after the accident, supporting their respective fears of impending death.  While every wrongful death case will not have such specific testimony (in fact, most do not) we expect all plaintiffs in wrongful death cases to cite this decision to support their sustainable damages claims in New York.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.


Right to Stop Work for Emergencies Insufficient Control under Labor Law (NY)

Under the infamous New York Labor law governing construction cases, a construction manager of a work site is generally not liable unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity that brought about the injury.

That issues was at the forefront of Lamar v. Hill International, Inc.  Plaintiff was working on the 7 train subway extension project on the West side of Manhattan when he allegedly fell from the top of a 10 foot hight stack of blasting mats. Both sides moved for summary judgment, and the construction manager defendant prevailed on the grounds that plaintiff did not adequately show that the construction manager had the authority to exercise supervision and control over the work that brought about the injury so as to enable them to avoid or correct an unsafe condition.

Specifically, as discussed in the appeal, the construction management services contract provided that these defendants were responsible for acting as liason with contractors to ensure that the project was completed in accordance with cost, time, safety, and quality control requirements and reporting to the MTA. The contract did not, however, confer upon these defendants the authority to control the methods used by the contractors, including the plaintiff’s employer, to complete their work. The construction manager defendants were authorized only to review and monitor safety programs and requirements and make recommendations, to provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and to stop work only in the event of an emergency.

The deposition testimony confirmed that the construction managers did not have control or a supervisory role over the plaintiff’s day-to-day work and that they did not assume responsibility for the manner in which that work was conducted. As such, the Appellate Division agreed that the trial court properly awarded the defendants summary judgment dismissing plaintiff’s complaint.

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.

Managing Expectations – Second Department Upholds Dismissal of Plaintiff’s Claims After Fall During Subway Extension Project (NY)

In Lamar v Hill Intl. Inc, the Second Department ironed out the standard for imposing liability under the Labor Law upon construction managers.

Plaintiff Willie Lamar was an employee of a joint venture, hired by the MTA to work on the extension of the Number 7 subway train to the west side of Manhattan. During the project, he was injured when he fell approximately ten feet from atop a stack of blasting mats. He commenced an action against multiple parties, including the project construction manager, Hill International, alleging violations of Labor Law §§ 240(1) and 241(6). Plaintiff moved for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241(6) causes of action, and the defendants cross-moved for summary judgment dismissing the complaint on the ground that they lacked authority to supervise or control the plaintiff’s work, and therefore were not liable under the Labor Law.  The trial court denied the plaintiff’s motion and granted the defendants’ motion to dismiss the complaint. Plaintiff appealed.

On appeal, the Second Department upheld the trial court’s decision, and explained that for a construction manager to face liability for alleged violations of Labor Law §§ 240(1) and 241(6), the plaintiff must demonstrate that the construction manager “had the authority to exercise supervision and control over the work that brought about the injury so as to enable the defendant to avoid or correct an unsafe condition.” As a construction manager is neither a property owner nor a general contractor, it will generally not face liability under the Labor Law unless it acts as an agent to either of those entities. To be considered owner of general contractor’s agent under the Labor Law, a party must have “supervisory control and authority” over the plaintiff’s work.

Hill’s contract with the MTA provided that Hill was responsible for coordinating the work, in terms of cost, time, safety, and quality control — but the contract did NOT provide Hill with authority to supervise or control the work of the contractors, including the plaintiff’s employer.  If an unsafe condition was found, Hill was empowered to make recommendations, provide instructions to contractors regarding correcting unsafe conditions, and stop work only in the event of an emergency. Moreover, the parties’ own deposition testimony showed that Hill did not supervise or control the plaintiff’s day-to-day work.

Accordingly, Hill made a prima facie showing that it did not supervise of control the work, and the dismissal was affirmed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

A Bridge Too Far – 1st Department Reverses Labor Law § 241(6) Claim Following Construction Accident on Whitestone Bridge (NY)

In James v Alpha Painting & Constr. Co., Inc, the First Department recently adopted a broad interpretation of section 23-8.2(d)(3) of the Industrial Code, which governs “mobile crane travel.”

The case arose from injuries sustained by plaintiffs Darren James and Balthazar Andrade, who were employed by a subcontractor on a project to renovate and repaint the Bronx-Whitestone Bridge. On the date of the accident, they were dismantling a scaffold and loading the materials onto a boom truck – a flatbed truck with a hoist or “boom” affixed to the back. Once they loaded the boom truck, plaintiffs were directed to board the boom truck while it drove the materials to the other side of the bridge. After driving approximately 700 feet, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and throwing the plaintiffs from the truck onto the roadway, causing severe injuries. Plaintiffs commenced a lawsuit against, inter alia, Alpha Painting and Construction Co., Inc. (Alpha), the general contractor on the project, and GPI, the construction manager, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The trial court granted defendants’ motion for summary judgment dismissing the complaint. On appeal, the First Department upheld the dismissal of plaintiffs’ common-law negligence and Labor Law §§ 200 and 240(1) claims. First, the Court held that even though the accident occurred 700 feet away from the job site, it occurred while the truck was “in the process of driving away.” Accordingly, it should be considered part of the site of the purposes of the Labor Law. Secondly, the Court upheld the dismissal of plaintiffs’ Labor Law § 240(1) claim, as the plaintiffs’ injuries were not caused by an elevation-related risk, but by the motion of the truck after the boom struck the overhead road sign. Lastly, the Court held that Alpha put forth prima facie evidence that it only had general supervisory control over the plaintiffs’ work, which the trial court correctly held was insufficient to establish liability under Labor Law § 200 or the common-law.

In terms of plaintiffs’ Labor Law section 241(6) claim, the Court found that issues of fact warranted reversal of the trial court. Specifically, the Court analyzed section 23-8.2(d)(3) of the Industrial Code, which pertained to “mobile crane travel.” Section 23-8.2(d)(3) provided that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab.” The Court recognized that in the case at bar, plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. However, the Court looked to cases from other Appellate Divisions that held section 23-8.2(d)(3) was violated when a mobile crane has “the boom so high that it may bounce back over the cab.” Accordingly, the Court remanded plaintiffs’ Labor Law section 241(6) claim to the trial court, so that a jury could resolve outstanding factual questions related to the operation of the worksite and which defendant had control over the injury producing work.

Despite the fact that the First Department upheld the dismissal of most of plaintiffs’ claims, it was clearly reticent to refuse plaintiffs their day in court. Here, the dissenting justices noted that the majority went to great lengths to apply section 23-8.2(d)(3) of the Industrial Code – which dealt exclusively with mobiles cranes – to the case at bar, which dealt with a boom truck. To the dissenters, a mobile crane and a boom truck were clearly distinguishable, so the majority was “unconvincing” in its efforts to find factual issues by relying on a regulation that did not even apply. Overall, the majority opinion clearly demonstrates the high bar movants face when seeking summary judgment.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Mason Found to Fabricate Scaffolding Accident (NY)

The Queens County Supreme Court recently tried a case in which plaintiff alleged he fell off a scaffolding, injuring himself in Klimowicz v. Powell Cove Associates LLC et al.

The plaintiff in Klimowicz was a mason and allegedly injured his right shoulder when, while building a brick wall and standing on an elevated scaffold at a construction site, fell through an opening in the scaffold

Plaintiff sued the premises’ owner and two related entities alleging state labor law violations, believing he fell because two boards had been removed from the scaffold’s platform, and because he was not provided the proper safety equipment as required under the statute.

As a result of the accident plaintiff suffered injuries including two arthroscopic surgeries on his shoulder, several courses of physical therapy, residual arthritic pain in shoulder with weakness and diminished range of motion.   Plaintiff ultimately demanded $1,000,000 for both past and future pain and suffering.

The matter went before a bifurcated jury trial, with the issue of liability being first heard by the jury.  The defense attorneys argued that plaintiff completely fabricated the incident to recover for injuries suffered at an independent incident unrelated to the scaffolding.  Defense Counsel noted that during a workers compensation hearing, plaintiff stated his injuries occurred while he was moving building materials.  Defense counsel also noted that in plaintiff’s medical records, plaintiff indicated the injuries occurred while plaintiff was pulling up a heavy plank.   In addition, plaintiff did not immediately report the incident after it was alleged to have happened but waited over a month.

The underlying workers’ compensation file, and persistence by defense counsel and their claim representative, helped to uncover the inconsistencies in plaintiff’s account. Ultimately, the jury rendered a defense verdict, finding that the defendants were not liable for plaintiff’s accident.   Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions.

Labor Law 240 Applied to Sprinkler Maintenance Contract Where Modifications to System Involved “Significant Physical Change”

Courts keep on expanding the reach of Labor Law 240’s applicability.  Even the sacred “routine inspection and maintenance” work is now expanding.

In Concepcion v. 333 Seventh, LLC, the building hired plaintiff’s employer to “routinely conduct inspections and maintain the building’s sprinkler system.” On May 1, 2015, plaintiff and his helper were at the building to modify the sprinkler to make it code compliant.  The work was performed pursuant to the maintenance contract.  There was no construction or renovation performed in connection with this work. The building’s superintendent directed plaintiff to the fourth floor and provided a 6-foot A-frame ladder. Mike, Plaintiff’s helper held the ladder while plaintiff worked. After the helper left to retrieve a piece of pipe, the plaintiff felt the legs of the ladder move forward causing him to lose balance and fall to the floor.

Defendants moved summary judgment on several grounds, including that Labor Law §240(1) was inapplicable since plaintiff was performing routine maintenance, while Labor Law §240(1) affords protection to workers engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

The court found that since plaintiff’s intended work that day included installing wheel assemblies and water flow switches, relocating drain lines and removing old drain lines there was a significant physical change to the building’s sprinkler system, more than routine maintenance. Defendants argued that the plaintiff was performing routine maintenance as required by the service estimate from 2013. The Court found this insufficient to raise a triable issue of fact since the estimate from May 2013 did not specifically mention the work plaintiff was performing on the date of the accident.

This was a lower court decision.  It remains to be seen whether it holds up on appeal.  The case, however, is venued in the First Department, which is notorious for expanding Labor Law 240 application.

Thanks to Hillary Gomez for her contribution to this post.



Sole Fact of a Workplace Fall Falls Short For Labor Law § 240(1) Claim (NY)

The New York Court of Appeals recently reiterated that the fact of a workplace fall alone is insufficient to support a summary judgment under Labor Law § 240(1).  In O’Brien v. Port Authority, the plaintiff, O’Brien, was injured while working for a subcontractor at the 1 World Trade Center construction site.  He brought suit against the Port Authority and the general contractor.

On the date of his fall, O’Brien had been working at ground level during periodic rain.  When he headed down one level to retrieve his raincoat from his shanty, he slipped off the tread of the top step of a temporary exterior metal staircase (also described as a temporary scaffold) and fell down the stairs, sustaining injuries.  The stairs were wet due to exposure to the elements.  In addition, O’Brien testified that the stairs were “steep, slippery and smooth on the edges.”  He also stated that his right hand was on the handrail, but he lost his grip because the handrail was also wet.  Plaintiff submitted an affidavit from a co-worker that stated that the stairs were slippery when wet and the slippery nature of the stairs was common knowledge at the construction site.

Plaintiff also submitted an expert affidavit in support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims.  The expert opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing.  The expert claimed that the stairs showed signs of longstanding wear and tear and lack of adequate anti-slip protection.

In opposition and in support of defendants’ cross-motion, their expert opined the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” The defense expert observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. The defense expert also disputed the staircase was smaller, narrower or steeper than usual.

The trial court denied all parties’ motions on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there was a violation of Industrial Code 12 NYCRR § 23-1.7 (d), which states that “Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”

On appeal, with one judge dissenting, the First Department modified the order by granting plaintiff’s motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department noted the conflicting expert opinions as to the adequacy and safety of the staircase, but nonetheless held that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.

The Court of Appeals considered only the Labor Law § 240(1) claim, finding that the First Department improperly found the stairs inadequate on the sole basis that the plaintiff fell – again with one justice dissenting.  The majority of the Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason. The Court found that there were questions of fact as to whether the staircase provided adequate protection – particularly with respect to the conflicting expert opinions. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact.

Justice Rivera’s lengthy dissent focused on the majority’s reliance on the “industry standard” as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to set their own standard of care for workers’ protections, thereby diminishing their statutory obligations.

While the argument that a plaintiff was the sole proximate cause of an accident must be supported by an expert affidavit, the practitioner must ensure that the basis of any expert’s findings is valid, in order to demonstrate a question of fact requiring the issue to be decided by a jury. Despite the dissent, an opinion grounded on “industry standards” is a valid basis for an expert opinion.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com

Accident Report Alone Sufficient for Summary Judgment in Labor Law Claim (NY)

In Weicht v. City of New York, the plaintiff was injured when he fell from a ladder while working on the job site. However, plaintiff could not provide any details regarding the cause of his fall to support his motion for summary judgment under Labor Law § 240(1). Instead, plaintiff relied on a post-accident OSHA report to establish that the bottom of the ladder he was standing on suddenly slipped out from beneath him, causing his fall.  The lower court ruled that the evidence set forth was sufficient and granted plaintiff summary judgment.

On appeal, the First Department held that the defendant failed to properly challenge the admissibility of accident report during the original motion and could not raise the issue on appeal. But regardless, the First Department also opined that the report was admissible evidence because it constituted a business record. In addition, contained within the OSHA report was a statement from the defendant employer regarding the cause of the accident which was was admitted as a vicarious admission of an employee.   As such, the award of summary judgment was affirmed – despite any testimony from plaintiff regarding how the accident occurred.

Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information.