New York State Labor Law and New York State Labor Law and - - PowerPoint PPT Presentation

New York State Labor Law and New York State Labor Law and Mitigation of Losses in Mitigation of Losses in Construction Construction

Labor Law Labor Law § §240(1), 240(1), § §241(6) & 241(6) & § §200 200 Labor Law Labor Law § §240 240 -

• Gravity Related

Gravity Related

Labor Law Labor Law § §240(1) 240(1) a/k/a The Scaffold Law a/k/a The Scaffold Law

All contractors and owners and their agents, except All contractors and owners and their agents, except

• wners of one and two
• wners of one and two-
• family dwellings who

family dwellings who contract for but do not direct or control the work, contract for but do not direct or control the work, in the erection ... of a building or structure shall in the erection ... of a building or structure shall furnish or erect, or cause to be furnished or erected furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding ... for the performance of such labor, scaffolding ... ladders ...ropes, and other devices which shall be so ladders ...ropes, and other devices which shall be so constructed, placed and operated as to give proper constructed, placed and operated as to give proper protection to a person so employed...... protection to a person so employed......

What does it mean? What does it mean?

• Construction

Construction

• Owners, General Contractors and

Owners, General Contractors and Construction Managers Construction Managers

• Duty is non

Duty is non-

• delegable

delegable

• Liability is absolute

Liability is absolute

• No set

No set-

• off for Plaintiff
• ff for Plaintiff’

’s comparative fault s comparative fault

• Lack of or inadequate safety devices, e.g.

Lack of or inadequate safety devices, e.g. ladders, ropes, pulleys, braces, etc. ladders, ropes, pulleys, braces, etc.

• Falling worker and/or falling object

Falling worker and/or falling object

Usual Fact Scenarios Usual Fact Scenarios

• Falling Worker

Falling Worker Worker falls from a height such as a Worker falls from a height such as a ladder or scaffold ladder or scaffold

• Falling Object

Falling Object Worker struck by falling object from Worker struck by falling object from above above

Recent Significant Case Law Recent Significant Case Law

• Runner v. NYSE (2009)

Runner v. NYSE (2009)

• Wilinski

Wilinski v. 334 East 92

• v. 334 East 92nd

nd Housing

Housing Development Fund Corp. (2011) Development Fund Corp. (2011)

• Ortiz v. Varsity Holdings

Ortiz v. Varsity Holdings

Runner v. NYSE (2009) Runner v. NYSE (2009)

Facts: Moving a large reel of wire. Facts: Moving a large reel of wire. Metal bar horizontally across Metal bar horizontally across door jamb on the same level as door jamb on the same level as the reel. Loose end of rope held the reel. Loose end of rope held by plaintiff and two co by plaintiff and two co-

• workers

workers while two other co while two other co-

• workers began

workers began to push the reel down the stairs. As the reel descended, to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal essentially acting as counterweights, toward the metal bar. bar. Ruling: LL 240(1) violated Ruling: LL 240(1) violated

Runner v. NYSE (cont.) Runner v. NYSE (cont.)

Reasoning: Harm to plaintiff was the direct Reasoning: Harm to plaintiff was the direct consequence of the application of the force of gravity consequence of the application of the force of gravity to the reel. to the reel. Injury was every bit as direct a consequence of the Injury was every bit as direct a consequence of the descent of the reel as would have been an injury to a descent of the reel as would have been an injury to a worker positioned in the descending reel's path. worker positioned in the descending reel's path. Although not following one of the two usual scenarios Although not following one of the two usual scenarios nonetheless involves an injury directly attributable to nonetheless involves an injury directly attributable to a risk posed by a physically significant elevation a risk posed by a physically significant elevation differential. differential.

Wilinski Wilinski v. 334 East 92

• v. 334 East 92nd

nd Housing

Housing Development Fund Corp. (2011) Development Fund Corp. (2011)

Facts: Plaintiff demolishing walls in a warehouse. Prior Facts: Plaintiff demolishing walls in a warehouse. Prior demolition left two metal, unsecured vertical plumbing pipes, th demolition left two metal, unsecured vertical plumbing pipes, that at ran from the floor on which plaintiff was working to a height of ran from the floor on which plaintiff was working to a height of between 8 to 12 feet. Debris from a nearby wall being between 8 to 12 feet. Debris from a nearby wall being demolished hit the plumbing pipes, causing them to fall over and demolished hit the plumbing pipes, causing them to fall over and strike plaintiff. Under prior case law, would have been dismiss strike plaintiff. Under prior case law, would have been dismissed ed as a falling object whose base stands at the same level as the as a falling object whose base stands at the same level as the worker. worker. Ruling: Court concluded that neither party was entitled to Ruling: Court concluded that neither party was entitled to summary judgment on the Labor Law summary judgment on the Labor Law § §240(1) claim inasmuch as 240(1) claim inasmuch as there was a "potential causal connection between the objects there was a "potential causal connection between the objects inadequately regulated descent and plaintiff's injury." inadequately regulated descent and plaintiff's injury."

Ortiz v. Varsity Holdings, LLC (2011) Ortiz v. Varsity Holdings, LLC (2011)

Facts: Plaintiff moving discarded materials Facts: Plaintiff moving discarded materials from the edges of a dumpster toward the from the edges of a dumpster toward the

• middle. As he was holding a beam and
• middle. As he was holding a beam and

standing with at least one foot on the ledge standing with at least one foot on the ledge

• f the dumpster, which was wet from rain,
• f the dumpster, which was wet from rain,

he lost his balance and fell 6 feet to the he lost his balance and fell 6 feet to the ground below. ground below. Ruling: Court refused to dismiss LL240(1) Ruling: Court refused to dismiss LL240(1) claims claims

Defenses Defenses Sole Proximate Cause Sole Proximate Cause

Blake v. Neighborhood Housing Services Blake v. Neighborhood Housing Services Montgomery v. Federal Express Montgomery v. Federal Express Robinson v. East Medical Center Robinson v. East Medical Center Singh v. Black Diamonds Singh v. Black Diamonds

Recalcitrant Worker Recalcitrant Worker

Cahill v. Cahill v. Triborough Triborough Bridge Bridge

Blake v Neighborhood Housing Services Blake v Neighborhood Housing Services

• f NYC (2003)
• f NYC (2003)

Facts: Plaintiff failed Facts: Plaintiff failed to lock clips on to lock clips on extension ladder. extension ladder. Ruling: No violation of Ruling: No violation of LL 240. Plaintiff the LL 240. Plaintiff the sole proximate cause. sole proximate cause.

Montgomery v Federal Express (2005) Montgomery v Federal Express (2005) The Bucket Case The Bucket Case

Facts: Plaintiff climbed Facts: Plaintiff climbed to a roof using a bucket to a roof using a bucket rather than obtain step rather than obtain step ladder that was nearby ladder that was nearby Ruling: Plaintiff the sole Ruling: Plaintiff the sole proximate cause proximate cause

Robinson v. East Medical Center (2006) Robinson v. East Medical Center (2006)

Facts: Plaintiff fell when Facts: Plaintiff fell when standing on top of a 6 standing on top of a 6-

• foot

foot stepladder reaching up to stepladder reaching up to the 12 the 12-

• foot ceiling.

foot ceiling. Ruling: Plaintiff's own Ruling: Plaintiff's own negligence was the sole negligence was the sole proximate cause of the proximate cause of the accident. accident.

Singh v Black Diamonds (2005) Singh v Black Diamonds (2005)

Facts: Plaintiff's motion for Facts: Plaintiff's motion for SJ denied. Jury trial SJ denied. Jury trial

• rdered.
• rdered.

Ruling: Plaintiff's action in Ruling: Plaintiff's action in removing plywood that had removing plywood that had been nailed down to cover been nailed down to cover an opening in roof creates an opening in roof creates question of fact as to sole question of fact as to sole proximate cause. proximate cause. Most typical application of sole Most typical application of sole proximate cause defense proximate cause defense – – use to defeat Plaintiff use to defeat Plaintiff’ ’s SJ s SJ Motion. Motion.

Cahill v. Cahill v. Triborough Triborough Bridge (2005) Bridge (2005)

Facts: Plaintiff refused to Facts: Plaintiff refused to use lanyard. Had been use lanyard. Had been instructed at safety instructed at safety meetings; was also meetings; was also warned having been warned having been caught doing so before. caught doing so before. Ruling: Plaintiff Ruling: Plaintiff recalcitrant worker and recalcitrant worker and the sole proximate the sole proximate cause. cause.

Labor Law Labor Law § §240(1), 240(1), § §241(6) & 241(6) & § §200 200 Labor Law Labor Law § §241(6) 241(6) – – Industrial Code Industrial Code

Labor Law Labor Law § §241(6) 241(6)

All contractors and owners and their agents except All contractors and owners and their agents except

• wners of one and two family dwellings who contract
• wners of one and two family dwellings who contract

for but do not direct or control the work, when for but do not direct or control the work, when contracting or demolishing buildings or doing any contracting or demolishing buildings or doing any excavation in connection therewith, shall comply with excavation in connection therewith, shall comply with the following requirements:... the following requirements:...

• 6. All areas in which construction, excavation or
• 6. All areas in which construction, excavation or

demolition work is being performed shall be so demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, constructed, shored, equipped, guarded, arranged,

• perated and conducted as to provide reasonable and
• perated and conducted as to provide reasonable and

adequate protection and safety to the persons employed adequate protection and safety to the persons employed therein or lawfully frequenting such places. The therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and provisions of this subdivision, and the owners and contractors and their agents for such work, except contractors and their agents for such work, except

• wners of one and two
• wners of one and two-
• family dwellings who contract

family dwellings who contract for but do not direct or control the work, shall comply for but do not direct or control the work, shall comply therewith. therewith.

What does it mean? What does it mean?

• Violation of Industrial Code

Violation of Industrial Code

• Construction

Construction

• Owners, General Contractors and

Owners, General Contractors and Construction Managers Construction Managers

• Duty is non

Duty is non-

• delegable

delegable

• Violation is only some evidence of a failure to

Violation is only some evidence of a failure to use reasonable care use reasonable care

• Liability is

Liability is not not absolute absolute

• Plaintiff's comparative fault

Plaintiff's comparative fault is is a defense a defense

Basis of Liability Basis of Liability Plaintiff must prove a violation of Part 23 Plaintiff must prove a violation of Part 23

• f the New York Industrial Code
• f the New York Industrial Code

Authored by the Department of Labor Authored by the Department of Labor 11 Subparts covering everything from 11 Subparts covering everything from safety glasses to explosives to scaffolds safety glasses to explosives to scaffolds to hoisting to cranes to ladders to hoisting to cranes to ladders

Notice is not required Notice is not required Rizzuto Rizzuto v.

• v. L.A.Wenger

L.A.Wenger Cont. Co., (1998).

• Cont. Co., (1998).

Court of Appeals held that notice of the Court of Appeals held that notice of the condition which violates Rule 23 is not condition which violates Rule 23 is not required since vicarious liability is not required since vicarious liability is not dependent on the defendant dependent on the defendant’ ’s personal s personal capability to prevent or cure the capability to prevent or cure the dangerous condition. dangerous condition.

Common Code Sections Common Code Sections -

• Slipping

Slipping 1.7(d) 1.7(d) – – Slipping Hazards Slipping Hazards Employers shall not suffer or permit Employers shall not suffer or permit any employee to use a floor, any employee to use a floor, passageway, walkway, scaffold, passageway, walkway, scaffold, platform or other elevated working platform or other elevated working surface which is in a slippery surface which is in a slippery condition.

• condition. Ice, snow, water, grease

Ice, snow, water, grease and any other foreign substance and any other foreign substance which may cause slippery footing which may cause slippery footing shall be removed, sanded or covered shall be removed, sanded or covered to provide safe footing. to provide safe footing.

Common Code Sections Common Code Sections -

• Tripping

Tripping 1.7(e)(1) and (2) 1.7(e)(1) and (2) – – Tripping Hazards Tripping Hazards

(1) (1) Passageways.

• Passageways. All passageways shall be

All passageways shall be kept free from kept free from accumulations of dirt and accumulations of dirt and debris and from any other obstructions or debris and from any other obstructions or conditions which could cause tripping conditions which could cause tripping. Sharp . Sharp projections which could cut or puncture any projections which could cut or puncture any person shall be removed or covered. person shall be removed or covered. (2) (2) Working areas. Working areas. The parts of floors, The parts of floors, platforms and similar areas where persons platforms and similar areas where persons work or pass shall be kept free from work or pass shall be kept free from accumulations of dirt and debris and from accumulations of dirt and debris and from scattered tools and materials scattered tools and materials and from sharp and from sharp projections insofar as may be consistent with projections insofar as may be consistent with the work being performed. the work being performed.

Common Code Sections Common Code Sections – – Equipment Equipment 1.8 1.8 Personal protective equipment. Personal protective equipment. Eye Protection, Hardhats, Goggles, etc. Eye Protection, Hardhats, Goggles, etc.

(a) Eye protection while engaged in any (a) Eye protection while engaged in any

• peration which may endanger the eyes.
• peration which may endanger the eyes.

(b) Respirators where required (b) Respirators where required (c) Protective apparel (c) Protective apparel -

• Head protection

Head protection (approved safety hat), Foot protection, (approved safety hat), Foot protection, Waterproof Clothing, Protection from Waterproof Clothing, Protection from Corrosive Substances includes eye Corrosive Substances includes eye protection protection

Common Code Sections Common Code Sections -

• Overhead

Overhead 1.7(a)(1) Overhead Hazards (Falling 1.7(a)(1) Overhead Hazards (Falling

• bjects, etc.)
• bjects, etc.)

Every place where persons are required to Every place where persons are required to work or pass that is work or pass that is normally exposed to normally exposed to falling material or objects falling material or objects shall be shall be provided with suitable overhead provided with suitable overhead protection protection… ….. ..

Common Code Sections Common Code Sections – – Openings Openings

1.7(b)Falling hazards. (1) Hazardous 1.7(b)Falling hazards. (1) Hazardous

• penings. (i) Every hazardous opening into
• penings. (i) Every hazardous opening into

which a person may step or fall shall be which a person may step or fall shall be guarded by a substantial cover fastened in guarded by a substantial cover fastened in place or by a safety railing constructed and place or by a safety railing constructed and installed installed … ….. ..

• Is it a

Is it a “ “hazardous opening hazardous opening” ” ? ?

• Fact sensitive

Fact sensitive -

• one of significant size or too
• ne of significant size or too

small for a worker to fall through small for a worker to fall through

Labor Labor Law §240(1), §241(6) & §200 Labor Law Labor Law § §200 200 – – Common Law Common Law Negligence Negligence – – Safe Place to Work Safe Place to Work

• Codification of Negligence

Codification of Negligence

• Supervision and Control

Supervision and Control

• Actual or Constructive Notice

Actual or Constructive Notice

Labor Law Labor Law § §200 200 General duty to protect health and safety General duty to protect health and safety

• f employees; enforcement
• f employees; enforcement
• 1. All places to which this chapter applies shall be so
• 1. All places to which this chapter applies shall be so

constructed, equipped, arranged, operated and constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate conducted as to provide reasonable and adequate protection to the lives, health and safety of all protection to the lives, health and safety of all persons employed therein or lawfully frequenting persons employed therein or lawfully frequenting such places such places… ….. ..

Risk Transfer Risk Transfer

• A. Use of contractual indemnity/hold harmless
• A. Use of contractual indemnity/hold harmless

provisions to require the subcontractor to provisions to require the subcontractor to indemnify the insureds for losses arising out indemnify the insureds for losses arising out

• f the work and with subcontractor AND
• f the work and with subcontractor AND
• B. Require subcontractor in the contract to obtain
• B. Require subcontractor in the contract to obtain

insurance naming the client as an additional insurance naming the client as an additional insured in the subcontractor insured in the subcontractor’ ’s policy including s policy including a broad form endorsement a broad form endorsement

Indemnification Agreements Indemnification Agreements

The subcontractor agrees to hold the owner or The subcontractor agrees to hold the owner or construction manager harmless from claims construction manager harmless from claims arising from the subcontractor arising from the subcontractor’ ’s work under the s work under the contract; contract; Types of indemnity agreements: Types of indemnity agreements: 1. 1. “ “Arising out of the work Arising out of the work” ” of the subcontractor;

• f the subcontractor;

2. 2. Requiring a showing of negligence or fault on the Requiring a showing of negligence or fault on the part of the subcontractor. part of the subcontractor.

Workers Workers’ ’ Compensation Law Compensation Law § §11 11

• Without a contractual indemnity

Without a contractual indemnity provision, a subcontractor can provision, a subcontractor can

• nly be held liable for a
• nly be held liable for a “

“grave injury grave injury to its employee. to its employee.

• Strictly construed

Strictly construed

A “grave injury” is defined by the New York State Workers’ Compensation Law Section 11 as: “death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss

• f multiple fingers, loss of multiple toes,

paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”

Priority of Coverage

A determination of the priority of coverage between policies “turns on consideration

• f the purpose each policy was intended to serve as evidenced by both its stated

coverage and the premium paid for it, as well as upon the wording of its provision concerning excess insurance” ( Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 AD3d 140, 148 [1st Dept 2008]. “[A]n umbrella or excess liability insurance policy should be treated as just that, and not as a second layer of primary coverage, unless the policy's own terms plainly provide for a different result. To hold otherwise would ... merely sow uncertainty in the insurance market” ( Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 AD3d 140, 855 NYS2d 459 [1st Dept 2008]. Also “An excess ‘other insurance’ clause will not render a policy sold as primary insurance excess to a true excess or umbrella policy sold to provide a higher tier

• f coverage” ( Sport Rock Int'l v. Am. Cas. Co. of Reading, 65 AD3d 12, 19, 878

NYS2d 339 [1st Dept 2009]; see Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363, 372, 681 NYS2d 208 [1998].

Mitigation of Losses due to Falls in Construction Mitigation of Losses due to Falls in Construction -

• Accident Investigation by Client

Accident Investigation by Client

Post Accident Investigation Post Accident Investigation – – Investigation should be uniform for all accidents Investigation should be uniform for all accidents -

• Even minor injuries can

Even minor injuries can become career ending become career ending A separate/independent accident report and investigation should A separate/independent accident report and investigation should be performed by be performed by management (not just the union) management (not just the union) Equipment involved in the accident should be preserved in a safe Equipment involved in the accident should be preserved in a safe place by a place by a person who will be able to establish chain of custody person who will be able to establish chain of custody-

• collect warnings and

collect warnings and manuals manuals Photos are essential to investigation Photos are essential to investigation -

• Photos should have some reference for

Photos should have some reference for dimensions and dated digital photos are preferable dimensions and dated digital photos are preferable Statements of all involved parties and witnesses (preferab Statements of all involved parties and witnesses (preferably in notarized form for ly in notarized form for admissibility) admissibility) Contracts of all involved trades including indemnity agree Contracts of all involved trades including indemnity agreements, insurance ments, insurance policies and certificates of insurance policies and certificates of insurance – –notify all carriers, primary and excess notify all carriers, primary and excess Record any post accident safety tests Record any post accident safety tests

Establishing an Investigation Procedure Establishing an Investigation Procedure

An established and consistent investigation procedure is the bes An established and consistent investigation procedure is the best line of defense. t line of defense. Repeating this procedure at all meetings is essential. Repetitio Repeating this procedure at all meetings is essential. Repetition is the Mother of Memory. n is the Mother of Memory. GC/CM Safety Representative to personally conduct initial Invest GC/CM Safety Representative to personally conduct initial Investigation: igation: Take ownership of the investigation for all losses. Take ownership of the investigation for all losses. Secure the Evidence Secure the Evidence Lack of Material Evidence can be the plaintiff Lack of Material Evidence can be the plaintiff’ ’s s “ “Nail Nail” ” or decisive factor in establishing

• r decisive factor in establishing

their case. their case. Establish Photographic Evidence Establish Photographic Evidence Photographic Evidence establishes a Visible Connection to the lo Photographic Evidence establishes a Visible Connection to the loss and proves invaluable to ss and proves invaluable to your defense. your defense. Create Historical Record of Findings Create Historical Record of Findings Clearly documented and verified records builds credibility Clearly documented and verified records builds credibility-

• secure the daily logs and safety

secure the daily logs and safety logs for the day before the date of loss, the date of loss and logs for the day before the date of loss, the date of loss and the day after the day after Document the condition of the injured party and further action Document the condition of the injured party and further action taken as a result of the loss. taken as a result of the loss. Recognition that your investigation did not fall short of your c Recognition that your investigation did not fall short of your concern for an injured person

• ncern for an injured person

gives credence to the character strength of the entire project a gives credence to the character strength of the entire project and the individuals responsible nd the individuals responsible for its safety. for its safety.