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

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

§ 240(1) Labor Law § 240(1) Labor Law 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 owners of one and two- -family dwellings who family dwellings who owners of one and two 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 off 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) • nd Housing v. 334 East 92 nd • Wilinski Wilinski v. 334 East 92 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- -workers workers by plaintiff and two co while two other co- -workers began workers began while two other co 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.

nd Housing v. 334 East 92 nd Wilinski v. 334 East 92 Housing Wilinski 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, that at demolition left two metal, unsecured vertical plumbing pipes, th 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 dismissed ed strike plaintiff. Under prior case law, would have been dismiss 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 § §240(1) claim inasmuch as 240(1) claim inasmuch as summary judgment on the Labor Law 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 of the dumpster, which was wet from rain, of 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. Triborough Triborough Bridge Bridge Cahill v.

Blake v Neighborhood Housing Services Blake v Neighborhood Housing Services of NYC (2003) of 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- -foot foot standing on top of a 6 stepladder reaching up to stepladder reaching up to the 12- -foot ceiling. foot ceiling. the 12 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 ordered. ordered. 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’ ’s SJ s SJ use to defeat Plaintiff Motion. Motion.

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