Recent "Pain and Suffering" Awards

In Colon v. New York Eye Surgery Associates, P.C., the plaintiff was injured in a trip and fall over a "grassy verge" that constituted a dangerous condition. Plaintiff's expert testified that plaintiff had "some components" of Reflex Sympathetic Dystrophy that "more likely than not" were causally related to the accident. The First Department affirmed the trial judge's decision to allow this seemingly speculative testimony and further affirmed awards of $300,000 for past pain and suffering and $650,000 for future pain and suffering as reduced by the trial judge from $750,000 and $1,500,000, respectively.

In Diouf v. NYCTA, the 55-year-old plaintiff fell on subway stairs and fractured both wrists. The left wrist fracture was a comminuted intra-articular fracture of the distal radius and ulnar styloid, which required two surgical procedures -- (1) internal reduction and (2) removal of the metal hardware. The plaintiff was left with decreased ranges of motion, tenderness and reduced grip strength, as well as traumatic arthritis. The jury's award of $800,000 for future pain and suffering was affirmed on appeal.

Two "Easy" Labor Law Cases

Lightning struck twice recently in the First Department when the Court was given two relatively easy Labor Law questions to decide.

In Solano v. City of New York, the Court held that a plywood plank that was deliberately dropped from a window does not constitute a "falling object" within the meaning of Labor Law 240(1).

In Rajkumar v. Budd Contracting Corporation, the Court held that plaintiff's interior decorating work was not construction, demolition or excavation work within the meaning of Labor Law 241(6). Although this issue was raised for the first time on appeal, the Court exercised its discretion to reach the unpreserved issue as it could have been decided as a matter of law below.

Conditional, Partial Contractual Indemnification

In Hughey v. RHM-88, LLC, the landowner, One United Nations Plaza Condominium (UNPC) and managing agent, Cushman & Wakefield (CW) were both granted conditional orders of partial contractual indemnification. Despite the fact that questions existed as to whether UNPC had constructive notice of the alleged condition which caused the plaintiff's injuries, UNPC was awarded indemnity from CW to the extent that UNPC was not itself negligent and for amounts not otherwise covered by insurance. Both UNPC and CW were awarded indemnity from the cleaning contractor, Pritchard despite the fact that UNPC and/or CW could be found negligent. Since the Pritchard cleaning agreement contained the requisite savings language, "to the fullest extent permitted by law," the Court held that UNPC and/or CW could be indemnified from Pritchard "to the extent they are not responsible for the injured plaintiff's accident."

A Construction Claim Trifecta - Issues of Labor Law 240(1), Grave Injury and Contractual Indemnity

In Miranda v. Norstar Building Corp., the Third Department was confronted with a case involving a trifecta of typical issues involved in construction site accident litigation -- Labor Law 240(1), "grave injury" and contractual indemnification.

The plaintiff in Miranda was catastrophically injured in a 30-foot fall from a rooftop. The plaintiff was not provided with traditional safety devices, in that there were no harnesses, lanyards, tie-offs, etc. Plaintiff was provided, however, with a "safety monitor" -- a co-worker whose job it was to watch the employees as they performed their work and warn them when they were too close to the edge of the roof. In holding that a "safety monitor" is not a "safety device" within the meaning of Labor Law 240(1), the Third Department found that the statutory enumerated devices, such as a scaffold, provide "physical support" to protect workers from elevation related risks. By contrast, the "safety monitor" provided no such physical support. Therefore, the Court deemed it consistent with the legislative intent of 240(1) to hold that plaintiff was not provided with a safety device within the meaning of the Labor Law.

Notably, the Court rejected the defendants' argument that, because a "safety monitor" was acceptable under OSHA guidelines and the only appropriate fall protection under the circumstances, they had not violated Labor Law 240(1). In essence, the Court held that the OSHA guidelines in this respect were inconsistent with the Labor Law. Interestingly, however, the Court could have opted to find that a "safety monitor" was a sufficient "device" within the meaning of the Labor Law, but still found that the defendants had violated the Labor Law because the monitor in the present case failed to meet the OSHA requirements. OSHA required that the monitor "shall not have other responsibilities which could take the monitor's attention from the monitoring function." Here, the monitor testified that he thought that he could perform additional tasks while performing the monitoring function and he was cleaning a seam on the roof when the accident occurred. The fact that the Court took the "extra step," so to speak, gives the impression that this issue was ripe for decision. Which, of course, leads me to wonder whether the Court of Appeals will be getting this issue sometime soon?

The "grave inujry" aspect of this case pertained to whether plaintiff was "employable" despite his traumatic brain injury. Given conflicting expert affidavits on this issue, the Court found that a question of fact existed to deny summary judgment. The Court also found that the guardianship Order in place, plaintiff's eligibility for Social Security and the fact that he was deemed permanently and totally disabled by the Workers' Compensation Board was not determinative of this issue, holding that such determinations are not dispositive (see Way v. Grantling, 289 AD2d 790 [3rd Dept. 2001]).

On the contractual indemnity issue, the Court found that the parties' agreement was not violative of the General Obligations Law in that the proposed indemnitee, NBC, was not seeking to be indemnified for its own negligence. Citing to Brooks v. Judlau (11 NY3d 204 [2008]), the Court specifically noted that the provision at issue was a "partial indemnification agreement." The Court went on to find, however, that a question of fact existed as to whether NBC was negligent with respect to the happening of plaintiff's accident. As such, it was premature to hold that NBC was entitled to conditional contractual indemnification. I wonder if NBC had argued that it should be entitled to conditional, partial contractual indemnification?

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

Gasques v. State of New York

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.”

Shubbuck v. Conners

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.

Some Interesting Negligence Issues All Rolled Up Into One Case

The case of Petty v. Dumont, contains a discussion of a few uncommon issues involving negligence. (1) The First Department reiterated the well-established rule that an innocent passenger is entitled to summary judgment despite issues of comparative negligence between defendants. (2) A known roadway hazard is a concurrent cause of an accident that is not superseded by driver negligence (citing Humphrey v. State of New York, 60 NY2d 742 [1983]). (3) By making "special use" of the roadway after the City had erected barriers in front of its facility after 9-11, Con Edison could be held liable to the plaintiff. More specifically, because Con Ed (a) controlled the barriers, (b) made use of the lane created by the barriers as an entrace to its facility and (c) benefitted from the security that the barriers provided, the Court applied the "special use" exception to the general principle that an abutting landowner is not obligated to maintain a public roadway.

Separate Phases of Work, Distinct From Construction, Are Not Protected By The Labor Law

In Barnes v. City of New York, the First Department held that "plaintiff's work, which consisted of disconnecting power cables from the third rail to allow a signal construction project to proceed safely, was a separate phase of work, distinct from any construction and thus, not a covered activity under Labor Law 241(6)."