Monthly Archives: July 2015

Runner is Back in Running for Labor Law 240 Lowering Heavy Objects from Heights (NY)

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As we reported back in October 2014, the USDC for the Northern District of New York decision in Diaz v. Globalfoundries U.S. Inc. limited the application of Labor Law 240 liability expanded by Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009). In Runner, the plaintiff, along with several co-workers, was injured while attempting to move an 800-pound reel of wire down four stairs.  The plaintiff, who was serving as a counterweight to a makeshift pulley was injured when he was dragged into the pulley mechanism by the reel’s rapid descent.

In Diaz, the plaintiff, an HVAC worker, was on a ladder installing a ventilation door/cap on a branch of ductwork.  Plaintiff ascended the ladder and then hoisted the door up from the floor to the ventilation duct using rope. The Federal Court, applying New York Law refused to extend Runner because plaintiff was injured during the process of lifting an inert weight.  As such, Diaz’s injury did not directly flow from the force of gravity to an object or person within the meaning of Runner.

Recently, the First Department applied Runner in their analysis of Serowik v Leardon Boiler Works.  Defendant owner, 125 East 84th Street Corporation hired defendant Leardon Boiler Works, Inc., to install a new boiler system at the premises.  Plaintiff’s employer, GDT, was subcontracted by Leardon, to do the job.  Plaintiff was injured while helping to lower a tank weighing at least four to five hundred pounds down a flight of stairs. The tank was attached to one end of a rope, and plaintiff and four others held the rope near the other end, to act as counterweights to slow the tank’s descent. When the tank was pushed over the edge of the top step, plaintiff was pulled forward into a pipe around which the rope was wrapped.  In the process, his index finger and part of his middle finger were severed resulting in what is considered a grave injury pursuant to Workers’ Compensation Law § 11.

In affirming a determination in Bronx County that plaintiff was entitled to summary judgment under Labor Law 240(1), the First Department stated that plaintiff’s injury, as in Runner, was due to the application of gravity to the tank.  The court found that the elevation differential was not de minimis given the weight of the tank, which generated sufficient force to pull the plaintiff into the pipe. The court discounted the defendants’ argument that the sole proximate cause of the accident was the fact that the plaintiff had wrapped the rope around his arm.  Rather, the court found that plaintiff was not provided with adequate safety devices. In addition, plaintiff’s work was a necessary step in the installation of the tank in the building, constituting alterations or other activities protected by Labor Law § 240(1).

While in some contexts, courts have limited the application of Runner, there is no doubt that this landmark decision will continue to apply to factual scenarios involving injury to persons during the lowering of heavy objects resulting in alterations to the premises.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .

Sudden Stop No Defense To Rear End Hit (NY)

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Because it is incumbent on a driver to maintain a safe distance to other vehicles for present road conditions, it is generally difficult to avoid liability for rear end hits.  Nonetheless, the most frequent defense is that a leading driver stopped suddenly thereby causing the accident.  However, this defense provides marginal cover and only under the right circumstances.

In Brothers v Bartling, the plaintiffs were passengers in a vehicle that was attempting to merge onto the Belt Parkway in slow traffic conditions when the car was rear-ended.  Defendants, Price and Gill, the owner and driver of the car in which plaintiffs were riding, moved for summary judgment.  Although they argued that the driver of the car that rear ended their vehicle was solely at fault, the trial court denied the motion on the basis of an alleged sudden stop.

The Second Department reversed the decision and granted Price and Gill’s summary judgment motion.  The Appellate Division explained that rear-end collisions create a prima facie case of negligence against the operator of the rear vehicle.  Accordingly, the operator of a following vehicle had the duty to “rebut the inference of negligence by providing a non-negligent explanation for the collision.”  While a non-negligent explanation could include a sudden stop if it is unforeseeable, this defense is unavailing where a driver should anticipate stopping traffic.   Given that traffic was moving slowly at the time of the plaintiffs’ accident and the Price/Gill vehicle was merging onto the parkway, the Appellate Division was unpersuaded by the sudden stop defense.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Cleaning a Backboard Does Not Qualify Under Labor Law Section 240(1) (NY)

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After the plaintiff in a recent Kings County lawsuit, Torres v. St. Francis College, was injured after falling from a ladder while using a rag to clean a backboard in a St. Francis College gymnasium, he filed suit under Labor Law §240(1), which requires that owners and contractors provide workers with safety devices when those workers are exposed to elevation-related risks while, among other things, cleaning a building or structure.  Here, however, his case was anything but a slam dunk.

According to the Second Department, the Kings County Supreme Court was correct when it granted St. Francis College’s motion for summary judgment.  While the statute clearly refers to “cleaning,” the court examined a number of factors to determine whether the cleaning constituted cleaning for Labor Law purposes.  Those factors included whether the job: 1) was a recurring one as a part of the ordinary maintenance and care of the premises; 2) required no specialized equipment or expertise, or the unusual deployment of labor; (3) involved an insignificant elevation risk that was typical in domestic or household cleaning; and (4) was unrelated to an ongoing construction, renovation, painting, alteration or repair project.

After ignoring the “insignificant elevation” factor, the court held that the backboard cleaning was not a Labor Law cleaning.  The court reasoned that the backboard cleaning was nothing more than routine maintenance which had been performed throughout the basketball season.  It also required no special equipment, and was not related to an ongoing construction project.

Plaintiffs will almost always file a Labor Law §240(1) claim when they are injured after falling off a ladder.  But Torres shows that not every elevation-related injury is covered by the statute and not all cleaning is cleaning.  That said, owners should always ensure that its safety devices are safe and in working order.  Many courts may have placed a greater emphasis on the height factor.    Please email with any questions.  Thanks to Mike Gauvin for his contribution.

 

Right of Re-Entry Overrides LL’s MSJ Based Upon Being “Out of Possession” (NY)

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In Yehia v. Marphil Realty Corp., plaintiff was injured in a fire that occurred in a building owned by defendant.  Plaintiff was employed by a grocery store in the building, and also lived in a bedroom located in the rear of the store.  The fire occurred while plaintiff was asleep in his bedroom.

Plaintiff alleged defendant was negligent in its ownership and maintenance of the premises and that it violated several fire regulations and occupancy laws.  Defendant moved for summary judgment arguing that it was an out-of-possession landlord and that it did not have notice of any allegedly dangerous or defective conditions. Plaintiff opposed arguing that defendant retained sufficient control over the leased premises, which imposes liability, and it did have actual notice of the dangerous conditions.

The trial court denied defendants motion and the Second Department affirmed.  The court held that a landowners duty to maintain his property in a safe condition is premised on the landowners exercise of control over the property.  Here, the lease gave defendant the right to reenter the premises at all times during business hours to inspect the premises, and the right to reenter to make repairs and improvements to all part so of the building.  The court held that defendant failed to show that it relinquished complete control over the property and defendant failed to demonstrate that it did not have actual or constructive notice.

In general, a landowner who has transferred possession and control is not liable for injuries caused by dangerous conditions on the property.  As this case shows, for the court to recognize an out-of-possession landowner, it is important that any tenant leases reflect a full transfer of possession and control.  Please email Brian Gibbons with any questions.  Thanks to Anne Henry for her contribution.

Insurer Has No Say in Drafting Verdict Slip in PA

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U.S. District Judge Kim R. Gibson of the Western District of Pennsylvania recently ruled that an insurer has no say in drafting the verdict slip.  The ruling arose in the case of Ellis v. Gadley.  There, Jerry Ellis Construction was sued by Gary Gadley for the improper installation of structural insulated panels on Gary’s roof.

In an attempt to fashion the verdict slip to its advantage, Cincinnati Insurance Company filed a motion to intervene on behalf of its insured, Jerry Ellis Construction.  In its motion, Cincinnati requested that the court allow it to draft a verdict slip for the jury to show the “breakdown of damages by category.”  Cincinnati argued that the jury’s responses on the verdict slip might apply to issues in the insurer’s companion declaratory judgment action against Ellis, in which it seeks a decision that it is not obligated to defend Ellis against Gadley’s claims.  Judge Gibson denied the motion.

The Court’s reasoning for denying the motion appeared to turn on the timing of Cincinnati’s motion to intervene.  Filed on the eve of trial, Judge Gibson found Cincinnati’s argument that it only became aware of its need to intervene disingenuous, especially in light of the fact the Insurer had represented Ellis since 2012 and did not file the motion to intervene until April 8, 2015.  Judge Gibson also found reason to deny Cincinnati’s motion on the grounds that it would place an undue burden on the parties regarding discovery and delay of trial.  Judge Gibson was also concerned about confusing the jurors because it appeared that the suggested interrogatories might inject issues implicating the declaratory judgment action and unrelated to the instant case.

Ultimately, Judge Gibson’s real hang-up about the request, however, appeared to be that Cincinnati was “asking to create categories of damages on the jury verdict form consistent with its interpretation of the underlying insurance policy in the declaratory judgment action.”  Nice try, Cincinnati.  Please email Brian Gibbons with questions.  Thanks to Hillary Ladov for her contribution.

Liberal Use Of “Any” Insured In Policy Defeats Exclusion (PA)

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In a recent Pennsylvania Supreme Court decision, the Court highlighted the ambiguity inherent in the use of definite and indefinite articles when associated with the term “insured”. In Mutual Benefit Ins. Co. v. Politsopoulos, et al., a restaurant leased space from property owners. An employee of the restaurant was injured when she fell on an outside set of stairs, and sued the property owners. The property owners, additional insureds under the restaurant’s insurance policy, sought defense and indemnity under the policy. The insurance carrier disclaimed coverage under the employer liability exclusion. The policy in this case included a “Separation of Insureds” clause which provided, subject to exceptions, that the policy applied separately to each insured against whom a claim had been made. At issue in this case is that the employee in the underlying action was not an employee of the property owners thus, the issue turned on the phrase “the insured”.

The Court found that the policy’s varying use of the definite “the insured” with the indefinite “any insured” created ambiguity in the exclusionary language. Because of the interchangeable use of the definite and indefinite throughout the policy, the Court found that as applicable to the exclusion, the term “the insured” could reasonably be taken as signifying the particular insured against whom the claim is asserted, thus, the employee exclusion did not exclude coverage for a non-employee of an additional insured.  Added attention to detail in the underwriting process could have avoided this scenario for the insurer.  Please email Brian Gibbons with any questions. Thanks to Tiffany Davis for her contribution.

Lack of Standing Still Viable Defense Against Data Breaches (PA)

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Around September 20, 2010, health insurance carriers Keystone Mercy Health Plan and Amerihealth Mercy Health Plan lost an unencrypted flash drive containing the personal and confidential health information of over 200,000 individuals.  The theft of the information contained on the flash drive not only violated the carriers’ own privacy practices, but breached both federal and states laws, including the HIPPA Privacy Rule and Pennsylvania’s Privacy of Consumer Health Information law.

As a result,Avrum Baum, the father of a special-needs minor insured by the carriers elected to bring suit on behalf of himself, his daughter, and other similarly situated individuals. On behalf of this group, he asserted claims for negligence, negligence per se, and a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa.C.S. § 201-1, et seq. What is more, Baum sought to certify the class of individuals who he alleged had their privacy compromised as a result of the flash drive loss.

On July 25, 2013, the Court of Common Pleas denied the plaintiff’s motion for class certification on all of the courts asserted.

On appeal, the Superior Court upheld the denial of class certification on the negligence claim. The Court found that there was no evidence that the plaintiff or any members of the purported class were at risk of identity theft because the personal health information on the flash drive could not be linked to individuals by name. However, where the Philadelphia Court found that the plaintiff could not establish typicality on the UTPCPL claims, the Superior Court elected to remand the case back to the Court of Common Pleas to determine whether the class could be certified based on the UTPCPL “catch-all provision.”

Thus, the question left to the court was: is there a class to be certified on plaintiff’s claim of deceptive practices under the “catch-all” provision of the UTPCPL which prohibits one from “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa.C.S. § 201-2(4)(xxi).

Ultimately, the Court of Common Please determined that Baum could not satisfy the typicality and adequacy standards that are required for class certification. The Court found that unlike other members of the class, the plaintiff’s daughter did not lose her personal data. None of the information on the flash drive could be linked to her identity. As such, plaintiff was rendered an inadequate representation of the group. Furthermore, the plaintiff did not give any consideration in exchange for the policy covering his daughter. Instead, the insurance was paid for by the state through Medicaid.

Baum serves as a reminder of the difficulties associated with data breach claims. If this case is any indication, these difficulties will not be going away any time soon.  Please email Brian Gibbons with any questions.  Thanks to Erica Woebse for her contribution.

WCM Is Pleased To Announce That Georgia Coats And Steven M. Kaye, Jr. Have Been Promoted To Counsel

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Georgia handles a variety of general liability claims, including high-exposure labor law and construction accident personal injury claims.  Georgia also litigates premises liability and property damage claims.  Georgia is a cum laude graduate of New York University where she was a member of the Dean’s List.  At Fordham University School of Law, Georgia was a member of the Fordham Environmental Law Journal.

Steven’s practice focuses on insurance coverage and appellate work.  Steven provides coverage opinions on a variety of issues, defends and prosecutes declaratory judgment actions and litigates complex commercial litigation actions.  Steven graduated cum laude from College of the Holy Cross and was a member of the Dean’s List.  He also graduated cum laude from Brooklyn Law School.