Monday, January 28, 2013

Court Rejects Attempt to Expand Broadnax

In Nadal v. Jaramillo, the plaintiff learned that she was pregant after a CT scan. She brought a medical malpractice against her physician claiming that her physician knew she was pregant before the CT scan, but failed to inform her that she was pregnant.  The only damages alleged were that the plaintiff suffered emotional distress from the fear that her unborn child might be harmed by the CT scan. The Second Department noted that New York courts "have been reluctant to recognize claims grounded in negligence when the damages are solely emotional" and dismissed, holding that New York has never recognized a theory as broad as plaintiff stated here.

Friday, January 18, 2013

Court of Appeals to Put Briefs and Records Online

As of February 1, 2013, the New York Court of Appeals is introducing Court-PASS: The Court of Appeals Public Access and Search System. For the first time, this new system will give the public free access to digital copies of the records and briefs for all cases pending in the Court of Appeals on or filed after January 1, 2013. In addition, Court-PASS will provide pertinent information about pending cases, including the due dates for briefs, schedules for oral arguments, and attorney contact information. Court-Pass will also make it easier for attorneys to file digital copies of briefs and records. While attorneys will still be required to provide hard copies to the Court, the number of hard copies has been reduced from nineteen to nine, "when the papers are being filed on behalf of parties with appeals, certified questions pursuant to section 500.27 of the Court of Appeals Rules of Practice, or judicial conduct matters."
The Court's full Notice to the Bar is here.

Tuesday, January 15, 2013

Cuomo Nominates Professor Jenny Rivera for Court of Appeals

Governor Andrew Cuomo has announced his nomination of CUNY Law Professor Jenny Rivera to the New York State Court of Appeals.  Here is the link to the Governor's press release.  The Senate now has thirty days to confirm or reject the appointment.  If confirmed by the Senate, Professor Rivera would replace Judge Carmen Beauchamp Ciparick who retired in December due to reaching the state's mandatory retirement age. 

Monday, January 14, 2013

Court of Appeals Watch: Morris v. Pavarini Construction

In Morris v. Pavarini Construction, a Labor Law § 241(6) action, the First Department granted leave to appeal to the Court of Appeals.  This will be the second time that this case and same issue are before the top court.  At issue is the interpretation of an Industrial Code provision requiring “forms” to be “braced or tied together so as to maintain position and shape” (12 NYCRR 23-2.2[a]).  

Adding to the difficulty is ambiguous word usage.  The plaintiff contends that the object that fell on his hand is a “form.”  What fell, however, is one panel of what would make up a two-panel “form” used to contain poured concrete when making concrete walls.  Both the part and the whole were referred to as a “form.”  And so, the plaintiff argued that the Code includes the “form” that fell on his hand.  But, the defendants argued that the Code refers to a completely constructed “form” only.

Previously, in 2006, the Appellate Division unanimously dismissed plaintiff’s case, reasoning that the Industrial Code provision did not apply to a form that was “in the process of being created.”  Then, the Court of Appeals granted leave only to decline to interpret the provision because the question could not “be answered on this record.”  And so, the matter was remitted for a framed issue hearing to develop an appropriate record as to “the nature of the object that caused the injury” and “whether the words of the regulation can sensibly be applied to anything but completed forms” (emphasis added).

The trial court then held the framed issue hearing and heard from experts on both sides.  The trial court granted the defendant’s motion for summary judgment, dismissing the action.  The Appellate Division then reversed, searched the record, and granted plaintiff summary judgment in a 4-1 decision. 

The majority opined that the provision was not limited to completed forms, noting that “[i]t defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it ‘be properly braced.’” In granting the plaintiff summary judgment then, the majority concluded that, “[t]he experts all agreed that once upright, the back form wall must be braced to maintain that position. Indeed, that the back wall fell on plaintiff indicates that it did not maintain its position and could not have ultimately maintained its shape, making it clear that it was not ‘properly braced’ as required by the regulation.”

The dissent countered that the provision “can only be read to apply to fully-assembled concrete forms.”  In doing so, the dissent looked to the words of the provision (“tie” and “shape” cannot apply to a single wall) and the nature of the neighboring provisions (subdivision [b] of the same subsection calls for inspections of “forms . . . including all braced and other supports during the placing of concrete”).  The dissent also argued that the majority gave undue significance to the expert opinions when deciding how to interpret the words of the provision.  In short, the dissent argued that the meaning of a statute is a question of law and an expert’s opinion that a partially constructed form should be braced does not answer whether the regulation is what compels that conduct.  In other words, plaintiff’s expert can be right that a single wall should be braced, but still not have an action against the defendant under section 241(6).

The Court of Appeals will now have a more developed record and lengthy majority and dissenting opinions on which to hear the case.

Fourth Department Holds No "Falling Object" Liability For Worker Struck By Material Being Hoisted, But Questions As To "Falling Worker" Liability For Worker's Subsequent Fall From Ladder

In Bruce v. Actus Lend Lease, the plaintiff was injured while he was securing a roof truss to a building.  A hoisting device prematurely lifted the truss, causing the truss to break apart.  Part of the truss still being hoisted then struck the plaintiff, knocking him off a ladder.  The Fourth department held that there was no “falling object” liability under Labor Law § 240(1) because the truss was rising when it struck the plaintiff and thus the injury was not the result of “the application of the force of gravity” to the truss.  Nevertheless, the Court found questions of fact concerning “falling worker” liability because there were questions about the adequacy of the safety device, absence of other safety devices and even whether the plaintiff was the sole proximate cause of his own injuries.

Note: This case illustrates an important point regarding "proximate cause."  An argument can be made that the defendant is not liable for any alleged injury attributable to being struck by the truss.  Instead, the defendant should only be held liable, if at all, for any alleged injury attributable to the fall from the ladder.