Thursday, October 21, 2010

Court Of Appeals Renders Decisions On Labor Law And Proving Lost Earnings With Reasonable Certainty

In this Labor Law action, the Court of Appeals affirmed the dismissal of claims brought under §§ 240(1) & 241(6).  The plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.” The Court also held that the plaintiff failed to assert a satisfactory predicate rule or regulation to a claim under 241(6). The plaintiff had asserted a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.”   According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

This car accident case concerns the sufficiency of proof of loss of future wages.  The plaintiff attempted to support his claim for a reduction in wages due to his injury by introducing W-2 forms and tax returns.  The Appellate Division held 3-2 that plaintiff’s own testimony was “legally sufficient to support a claim” for loss of future wages.  The Court of Appeals reversed holding that "W-2 forms and tax returns that plaintiff introduced demonstrated his yearly income post accident but they were not probative of a reduction in future wages as a result of the accident because they did not compare his pre and post accident income nor compare his post accident income with the income of similarly situated employees in plaintiff's company." According to dissenters at the Appellate Division, the plaintiff did give oral testimony concerning other employees and their rate of pay at the plaintiff’s company, but provided no documentation to support that claim.

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