Wednesday, November 23, 2011

Court of Appeals Holds Sect. 240(1) Does Not Apply When the Allegedly Necessary Safety Device Would Defeat the Objective of the Work to be Performed

In Salazar v. Novalex Contracting Corp., 2011 NY Slip Op 08446, a majority of the Court of Appeals dismissed this Labor Law action where the plaintiff was injured stepping into a trench that was “between 3 and 4 feet deep.” The plaintiff stepped backwards or fell into the trench while raking wet concrete to fill and level the floor, including filling the trench at issue. The trench was partially filled with concrete when the plaintiff was injured.

In this 4-3 decision, the majority concluded that under a “common sense approach,” it would be “contrary to the objectives of the work plan” for an owner or general contractor to cover or barricade trenches where the job was to spread concrete and fill them. The claim under Labor Law § 241(6) was rejected on substantially similar grounds. Since filling the trench was an “integral part of the job,” a building code provision about installing safety railing or fastening covers at hazardous openings should not apply.

By contrast, the dissent would have denied summary judgment on both claims. The dissent argued this was “precisely” the type of case to which 240(1) would apply and that there was no reason why the building code about hazardous openings should not apply. With respect to both of the majority’s conclusions, the dissent claimed that questions of fact exist because the record was not clear about whether the trench was “purposely being filled at the time,” or that “seepage [into the trench] was intentional.” The dissent reasoned that even if the court were to assume that the trench was being purposely filled, the case should go to a jury after testimony by “experts on construction techniques,” to decide whether the plaintiff could be protected while also filling the trench.

Tuesday, November 22, 2011

Fourth Department Reduces $33 Million Pain and Suffering Award

In Barnhard v. Cybex Intl., Inc., the plaintiff, a 24-year old female physical therapy assistant, suffered a fractured vertebra when a exercise machine tipped over and fell on top of her.  As a result she is quadriplegic and requires around the clock care.  At trial she argued that her injuries "left her unable to experience the joys of parenthood and grow the massage-therapy business she was in the process of founding at the time of the accident" (2010 WL 5760848).  The jury awarded the plaintiff $33 million for total pain and suffering, $28,563,128 for future medical expenses, $151,690 for past lost earnings, $1,797,612 for future lost earnings, and $792,435 for "future care of potential children."  The parties also stipulated to $1,689,439 for past medical expenses. 

On appeal, the Fourth Department reduced the pain and suffering award to $12 million.  The Court also vacated the jury's $792,435 award for "future care of potential children" as based entirely on speculation.  

First Department Holds 4 to 5-foot Fall From Dock Platform Subjects Owner To Labor Law Sect. 240(1) Liability

In Cassidy v. Highrise Hoisting and Scaffolding, Inc., the plaintiff fell 4 to 5-feet from a temporary loading dock at a building under construction. When not in use, a rail was in place across the loading dock. As a delivery was received, the rail would be removed. When the delivery was concluded, the rail would be replaced. Plaintiff leaned against the rail which came loose, causing him to fall. The First Department affirmed summary judgment to plaintiff, holding that his injuries were gravity-related and were the result of a failure of a safety device -the rail- which was intended to protect workers from falling.

Thursday, November 17, 2011

Judge McKeon Issues First Decision Regarding the Medical Indemnity Fund

As reported in today's Law Journal, Judge Douglas McKeon (Sup. Ct., Bronx County) has now issued the first decision relating to the newly enacted Medical Indemnity Fund.  As we posted in April, the Medical Indemnity Fund was established to pay for future medical costs in medical malpractice cases involving alleged birth-related neurological injuries. In such cases, all future medical expenses will now be paid by the Fund, and not by the defendant or the defendant’s insurer.

In Mendez v. New York and Presbyterian Hospital, Judge McKeon discusses the new statute and how settlements should be approached. In this action the parties agreed to settle the case for $5.5 million with 50% allocated to non-Fund damages and 50% to Fund damages. Pursuant to Public Health Law Sec. 2999-j(14), the defendant must pay as a lump sum (1) the amount allocated to the non-Fund damages and (2) the attorney's fees on the portion allocated to the Fund. Attorney's fees are calculated on the total amount pursuant to Judiciary Law Sec. 474-a. Here that resulted in the defendant having to pay a total of $3,100,000 representing $2.75 million for non-Fund damages, plus $350,000 for the attorney’s fee on the non-Fund damages. The plaintiff receives $2,400,000, which represents $2.75 million for the non-Fund damages minus the attorney’s portion that award.  The plaintiff's attorney's total fee is $700,000.   

A few additional key points from the decision:

1. To be eligible for the Fund, the settlement must include a finding that the plaintiff is a qualified plaintiff, i.e has sustained a neurological injury as a result of medical malpractice.

2.  Medical expenses paid from the Fund are not limited to the dollar value of the settlement. 

3. "The creation of an obstetrical fund was an obvious vehicle by which to achieve the Governor’s dual objective of reducing both Medicaid costs and medical malpractice premiums while, on a human level, providing a lifetime of guaranteed care, geared to obstetrical mishap victims, as well as the comfort which comes to a parent by the knowledge that help will be provided to a handicapped child when mom and dad are gone” (p. 8).   

4. According to Judge McKeon, the Fund obviates the need for a Supplemental Needs Trust (SNT). Without an SNT, the plaintiff can “settle an action for up-front cash, buy a house and receive a lifetime of care without encumbering the cash or the house, which is the legal consequence of an SNT” (pp. 8-9). 

5. “As a general rule the existence of the Fund is not supposed to increase the amount of the settlement. In other words, an action settled pre-Fund for $4,000,000 should settle for $4,000,000 today” (pp. 10-11).  One potential exception identified by Judge McKeon may be where there is limited coverage (p. 11). As Judge McKeon notes, however, this exception is “evolving.”   In our opinion, therefore, decisions will have to be made on a case by case basis.

6. In obstetrical malpractice cases, historically, future medical care and treatment is by far the most costly element of damages, often substantially more than 50% of the total damages (pp. 12-13). While this precedent would justify a greater allocation of a settlement to Fund damages, Judge McKeon notes that certain practical realities must come into play (pp. 13-14). This is because the higher the amount that gets allocated to the Fund, the lower the amount of cash the plaintiff will receive. Thus, when settlements are smaller, consideration can be given to providing a larger cash portion to the plaintiff. Furthermore, according to Judge McKeon, where custodial care will not be necessary, that could be taken into consideration when determining the allocation (p. 15). Generally, however, an allocation of 50-50 is a good rule of thumb.