Second Department Denies Summary Judgment to Plaintiff On His Labor Law § 241(6) Claim Where Issues of Fact Remain as to Plaintiff's Comparative Fault

In Cardenas v. 111-127 Cabrini Apartments Corp., the plaintiff was injured while painting when he fell from a ladder that had a defective supporting bracket that could become unlocked without warning. He commenced an action against the defendant alleging, in part, violations of Labor Law §§240(1) and 241(6). On the plaintiff's motion for partial summary judgment on liability, the lower court granted the plaintiff summary judgment pursuant to both Labor Law §§240(1) and 241(6). On appeal, the Second Department modified only insofar as the Court denied the plaintiff summary judgment on his section 241(6) claim - the Court affirmed summary judgment on the section 240(1) claim. The Court found that, although the Industrial Code provision relied on by the plaintiff had been violated, issues of fact nevertheless remained as to the plaintiff's comparative negligence. (see our recent blog post regarding comparative negligence and its affect on summary judgment here) 

First Department Finds Sole Proximate Cause In Labor Law Action Where Plaintiff Chose the Method of Securing Equipment That Fell and Contributed to His Injury

In Guido v. DASNY, plaintiff parked his truck on top of debris outside of a construction site where his employer was performing work, causing his truck to "tilt." As he was loading his employer's ladders into the truck, they slid causing him to fall to the ground. In dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims, the First Department found that the "tilt" was de minimis, and thus not an elevation-related hazard. The Court further found that the Industrial Code provision relied on by plaintiff, 12 NYCRR §23-1.7(e), regarding clearing debris did not apply because the area where he was injured was not a passageway or working area. And, plaintiff was nonetheless the sole proximate cause of his accident. Plaintiff chose the method for securing the ladders to the truck. After securing one ladder with a bungee cord, plaintiff chose to remove the bungee cord in order to secure a second ladder. The Court found that plaintiff could have instead used one of the several bungee cords that were available in order to separately secure the second ladder.   

First Department Allows Evidence of Post-Accident Repairs to be used to Establish Identity of Alleged Injury Producing Equipment

In Perkins v. NYCTA, the First Department affirmed the lower court's direction to the defendant to produce evidence of post-accident repairs in order to establish that a wheelchair ramp to be inspected was the same ramp on which plaintiff was allegedly injured. As an alternative, the defendant could provide an affidavit attesting to the fact that the wheelchair ramp to be inspected was the same ramp on the bus at the time of the accident.

First Department Seemingly Finds That Whether Ambiguity Exists in an Insurance Contract Depends on the Facts of the Case Rather Than the Terms of the Insuring Agreement

We had previously reported that in Dean v. Tower Ins. Co., the Court of Appeals had affirmed the First Department on a finding that the term "reside" in an insurance policy issued by Tower Insurance was ambiguous. This issue has appeared again in Tower Ins. Co. v. Zaroom, where the First Department has now found that the term "reside" is unambiguous. The Court specifically indicated that "under the circumstances of this action, as opposed to the circumstances in Dean v. Tower Ins. Co. of N.Y. (19 NY3d 704 [2012]), 'reside' is not ambiguous."

In Dean, the property owner was renovating the insured-property when a fire occurred. Although he did not reside in the house undergoing renovations at the time of the fire, he had spent a considerable amount of time at the house during the renovation, ate at the house and slept there on several occasions. By contrast, in Tower v. Zaroom, the Zarooms admitted that they did not reside at the insured-property. Clearly, therefore, where there was a question of fact in Dean as to whether the owner could be deemed to have "resided" at the insured-property at the time of the fire, there was no question of fact that the Zarooms did not reside at the insured-property.

The difficulty here is that, if the term "reside" was ambiguous in Dean, then it must likewise still be ambiguous in Tower v. Zaroom. The definition of the term has not changed, just the facts applied to the definition. Therefore, the effect of Dean and Tower v. Zaroom is that, unlike most other situations where ambiguity in an insurance contract is determined as a matter of law, whether the term "reside" will be found to be ambiguous is dependent on the factual circumstances of each individual case. 

Recent Second Department Decisions Highlight A Common Theme When Deciding Liability For "Defective Means and Methods" or "Defective Conditions" Under Labor Law § 200

In determining liability under Labor Law § 200, there are two principles that underscore most Labor Law § 200 cases (1) where liability can be imposed based on "defective means and methods" of the work and (2) where liability can be imposed based on a "defective condition" on the property. Both of these principles require either control over the work or control over the condition. Two recent decisions from the Second Department illustrate these principles.

In Zupan v. Irwin Contracting, Inc., the plaintiff was carrying a 30-foot long, 200-pound steel rafter on his shoulders and was injured when he attempted to place the rafter on the ground. He commenced an action against the general contractor and construction manager asserting claims, in part, under Labor Law § 200 and common-law negligence. Thereafter, the general contractor and construction manager separately moved for summary judgment. The Supreme Court granted the motions and the plaintiff appealed.

On appeal, the Second Department reversed summary judgment in favor of the general contractor finding that the general contractor had failed to eliminate material issues of fact, but the Court affirmed as to the construction manager. The Court found that this was a case involving defective means and methods and the general contractor had supervised the plaintiff and given him his daily work assignments.  In addition, the plaintiff alleged that the general contractor had given plaintiff specific instructions as to how to move the rafter and when plaintiff complained he was told "just do it."  Therefore, the plaintiff's testimony raised a question of fact as to whether the general contractor could be held liable under section 200 of the Labor Law.

In Kane v. Peter M. Moore Construction, Co., the plaintiff was working on a home renovation when he slipped and fell on a dropcloth placed on a staircase allegedly by the employees of another contractor. The Supreme Court denied both the homeowner's and contractor's motions to dismiss the plaintiff's section 200 claim. On appeal, the Second Department reversed as to the homeowner upon a finding that constructive notice could not be established, but affirmed as to the contractor upon finding that the contractor had failed to establish that it did not create the condition on which the plaintiff had fallen. 

Second Department Finds That Worker's Fall From Open Tailgate of Moving Pickup Truck, and His Subsequently Being Struck by A Falling Object, Does Not Trigger Liability Under Labor Law § 240(1)

In Eddy v. John Hummel Custom Bldrs., Inc., the plaintiff had loaded heavy construction material into the back of a pickup truck in order to transport the materials at a construction site. One such item was a cast iron grate weighing approximately 100 pounds. The plaintiff and a co-worker placed the grate on the open tailgate of the truck. The materials were not secured with ropes, bungee cords, ratchets, or other similar devices and the bed of the truck was not equipped with a seat or platform for someone to sit on.

The plaintiff’s co-worker, DiSunno advised the plaintiff to sit in the front passenger seat because DiSunno did not think it was safe for the plaintiff to ride in the back of the truck. The plaintiff decided instead to sit on top of the grate that was lying on the open tailgate. In this position, the plaintiff's feet hung over the edge of the tailgate. As DiSunno began to drive the truck, the plaintiff fell and the grate toppled off the tailgate, striking the plaintiff causing his injuries.

The plaintiff commenced this action against the general contractor and owners of the site, alleging, in part, violations of Labor Law §§ 200, 240(1), and 241(6). The general contractor moved for summary judgment and the plaintiff cross-moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1). The Supreme Court denied the general contractor's motion and granted the plaintiff's cross motion. The court reasoned that although the statute did not typically apply to injuries caused by materials that fall from a minuscule height during the loading or unloading process, the statute applied in this case because the falling grate required securing for the purposes of the work and posed a foreseeable risk of falling from the truck due to an elevation differential.

In reversing the lower court and granting the general contractor’s motion to dismiss the plaintiff’s section 240(1) claim, the Court observed that the Court of Appeals and the Second Department have repeatedly held that “because the distance between the back of a pickup or flatbed truck and the ground is so small, the risk of a worker falling off the back of a pickup or flatbed truck is, as a matter of law, is not an extraordinary elevation-related risk protected by Labor Law § 240(1), but rather, one of the usual and ordinary dangers of a construction site.” In two such cases, including Dilluvio v City of New York (95 NY2d 928 [2000]) the plaintiff had injured himself as a result of falling from a truck that was moving, and the courts held that “the danger to the plaintiff was referable to the movement of the truck and not height.” 

The Second Department further observed that it had previously held that because the distance between the back of a flatbed truck and the ground is so small, workers injured by objects being unloaded from a flatbed truck while standing on the ground next to the truck are likewise not entitled to recover pursuant to Labor Law § 240(1).

In the present case, therefore, the Second Department rejected the plaintiff’s contention that the elevation differential between the bed of the pickup and the ground could not be de minimis given the weight of the grate (citing Runner v New York Stock Exch., Inc., 13 NY3d at 602, 605 [involving a reel of wire that weighed "some 800 pounds"]) because even if the plaintiff had been injured while unloading the 100-pound grate his argument would be undercut by the Court of Appeals decision in Rodriguez v Margaret Tietz Ctr. for Nursing Care (84 NY2d 841), where the Court of Appeals held that the plaintiff was exposed to the usual and ordinary dangers of a construction site, rather than a special elevation risk contemplated by Labor Law § 240(1), in placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other coworkers.

The Second Department further rejected plaintiff’s argument on the basis that plaintiff was not engaged in the task of unloading the truck at the time of the accident. The Court observed that the grate had only fallen onto the plaintiff because the plaintiff had fallen off the truck as a result of the movement of the truck. Therefore, the task that the plaintiff was engaged in at the time of the accident was the task of riding in a pickup truck, which, as indicated, does not present an elevation-related risk.

The Second Department also found that, even if Labor Law § 240(1) applied, plaintiff would not be entitled to recovery because, under the circumstances of this case, any failure on the part of the general contractor to provide the plaintiff with protection from riding in the back of the pickup truck was not a proximate cause of the accident. The Court found that the plaintiff’s refusal to heed the advice of DiSunno and sit in the front passenger seat, coupled with the plaintiff’s decision to sit on top of the grate that was lying on the truck's open tailgate, with his feet dangling over the edge of the tailgate, were “so unforeseeable as to break the causal nexus between the alleged failure of [the general contractor] to comply with Labor Law § 240(1) and the plaintiff's injuries, and the plaintiff's decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries."  As such, the Court also dismissed plaintiff's section 241(6) claim.

Court of Appeals Reverses First Department On Issue of Whether Plaintiff Was Sole Proximate Cause of His Fall From Scaffold and Grants Plaintiff Summary Judgment

We had previously reported that the First Department had found questions of fact regarding sole proximate cause in a Labor Law § 240(1) action in Batista v. Manhattanville College. Subsequently, the First Department granted leave to appeal to the Court of Appeals.  On appeal, the High Court reversed and granted summary judgment in favor of plaintiff. See our original entry below for the facts of the case.

In Batista v. Manhattanville College, the plaintiff was injured in a fall from a scaffold that he was constructing. Plaintiff had been instructed to use only pine planks for the flooring and to check the planks for knots. He fell two stories from the scaffold when an alleged spruce plank that he was standing on broke.

On motions for summary judgment the trial court granted plaintiff partial summary judgment on liability pursuant to Labor Law § 240(1), finding that the scaffold failed to provide plaintiff with proper protection. On appeal, the First Department reversed and denied the motion. The Court found that whether plaintiff disregarded instructions to use only pine planks and whether more pine planks were readily available to him were questions of fact. The Court also found that whether plaintiff was responsible for checking the planks for knots was also a question of fact.