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PREMISES LIABILITY/LABOR LAW COMMITTEE
Chairperson
Glenn A. Monk,
Esq.
Harrington, Ocko & Monk, LLP
84 Main Street, 2nd Floor
White Plains, New York 10601
914-686-4800/FAX (914) 686-4824
gmonk@homlegal.com
Case Summaries
PREMISES LIABILITY / GENERAL
NEGLIGENCE
A.ORTEGA
v. CITY OF NEW YORK, 9 N.Y.3d 69, 845 N.Y.S.2d 773
(2007)
The Court of Appeals held that New York
does not recognize an independent tort of third-party negligent
spoliation. This absolute rule clarified the prior opinion of the Court
in Metlife Auto & Home v. Joe Basil Chevrolet, 1 N.Y.3d 478
(2004) where the Court had rejected a similar claim but had noted that
the spoliator in the case had no common law duty or contractual
obligation, nor was it subject to a court order to preserve the
evidence, nor had it a special relationship with the party whose
property was lost or destroyed. Thus, the opinion in Metlife
suggested that had any such conditions existed an independent tort claim
might exist. Here, plaintiff owner had his vehicle serviced and
inspected. The following day while operating the vehicle, it caught on
fire seriously burning the owner and his passenger. The police had the
vehicle towed by a contractor and stored in a City auto pound. The
owner's lawyer sought to inspect the vehicle but since counsel was not
the registered owner, the request was denied. The attorney then
commenced and was successful on a special proceeding against the
contractor and the City to preclude destruction of the vehicle. After
the order was served, unfortunately, due to a bureaucratic error by the
City, the vehicle was destroyed. Plaintiffs then sued the City based on
a theory of negligent spoliation, seeking that the City pay all damages
suffered by the plaintiffs from the accident. Thus, here, unlike the
facts in MetLife, due to the court order which was violated,
there was a connection between the spoliation and the injured party.
However, as mentioned above, the Court determined that a blanket rule
barring a cause of action for negligent spoliation against third parties
was appropriate. The Court's rationale was predicated on public policy
considerations. Specifically, the Court observed that, "we are not
persuaded that it would be sound public policy to create a new tort that
shifts liability from responsible tortfeasors to government entities
that serve as repositories of evidence . . ." as to do so could
lead to the consequence that the negligent spoliator could essentially
end up being an insurer. The Court was also concerned that given that
the evidence was destroyed before it was inspected or tested, a jury
would be left to speculate on issues of causation and damages which
would result in arbitrary verdicts.
B. HAYMON v. PETTIT, __ N.Y.3d
__, 2007 N.Y. LEXIS 3281 (2007)
On this appeal the Court held that a
baseball park operator did not owe a duty to warn or protect non-patron
spectators who are injured while chasing foul balls that are hit out of
the stadium. Defendant owner had a standing policy to reward, with a
free ticket, non-patron spectators who returned foul balls hit out of
the park. A public highway ran adjacent to the third-base side of the
stadium. On the other side of the highway was a public parking lot used
by fans. Plaintiff's decedent, her 14 year old son, often hung out in
the parking lot to retrieve errant balls. On the day of the incident a
ball was hit out of the park and into the street. The child, who was
wearing headphones, neither saw nor heard the oncoming vehicle which
struck and killed him. The driver, a codefendant, was legally
intoxicated at the time. In deciding the appeal, the Court noted that an
owner of property owes no duty to warn or protect against a danger on
adjacent property unless the owner caused or contributed to the
dangerous condition, as to do otherwise would be unfair. It further
noted that in determining whether a duty exists, considerations such as:
the reasonable expectations of the parties and society in general; the
proliferation of claims; the likelihood of unlimited or insurer-like
liability; and disproportionate risk of reparation allocation, are
relevant. Citing Akins V. Glens Falls City School District, 53
N.Y.2d 325 (1981), the Court stressed that the "practical realities" of
baseball include the inherent risk of foul balls and that to set a
standard of absolute protection from that risk is impractical. It
rejected plaintiff's contention that a duty arose due to defendant's
creating an incentive to retrieve errant balls and the foreseeability of
children chasing balls in the street, finding that while foreseeability
may exist, it does not automatically translate into a duty owed. The
Court pointed out that the dangers of crossing a street and of chasing a
baseball in that street existed independent of defendant's promotion.
Additionally, it pointed out that defendant had no ability to control
the public street or those who ventured into it. It also did not deem
the promotion as contributing to a dangerous condition as persons in
decedent's position had a duty to act prudently, and that to impose a
duty, as in this case due to the conduct of a third person on a public
highway, would impose limitless liability and would be
unrealistic.
C. MILLER v. CONRAIL, 9 N.Y.3d
973, 2007 N.Y. LEXIS 3277 (2007)
Defendant owned a railroad storage yard
where new cars that had been transported by rail were delivered and
stored until independent freight haulers picked up and transported those
cars. Plaintiff, an employee of one of these freight haulers, was
injured while loading vehicles onto his truck at night. At the time of
the accident a power outage had caused the lights in the yard to be out.
In dismissing plaintiff's case, the Court of Appeals ruled that,
"[a]bsent a hazardous condition or other circumstance giving rise to an
obligation to provide exterior lighting for a particular area,
landowners are generally not required to 'illuminate their property
during all hours of darkness' and that even if there was an obligation
to afford lighting, defendant had lighting for the area but the
darkness. . ." was due to the power outage or condition which
defendant had no control over and which plaintiff was aware of before be
began his work. Therefore, under these circumstances, defendant did not
breach a duty to plaintiff and defendant was entitled to summary
judgment.
D. IMTANIOS v. GOLDMAN SACHS,
44 A.D.3d 383, 843 N.Y.S.2d 569 (1st Dept.
2007)
On behalf of defendant Goldman Sachs,
defendant Jones Lang (its managing agent) entered into a maintenance
contract with third-party defendant ABM, plaintiff's employer. Plaintiff
testified that after emptying garbage from a particular floor and taking
it to the freight elevator, he observed various computer parts stacked
by the elevator. In negotiating entry into the elevator, he slipped on
one of these parts and was injured. In ruling that defendants were
entitled to summary judgment, the Court noted that the contract required
ABM to clean the common areas, including the elevators and freight
lobbies, and that therefore plaintiff was injured due to a condition
which his employer was responsible to remedy, a risk inherent in his
job. Accordingly, defendants "owed no duty to plaintiff to keep the
floor clean so that the plaintiff could perform his job to clean the
premises."
E. PLOWDEN v. STEVENS PARTNERS, LLC., __ A.D.3d __, 846 N.Y.S.2d 238 (2d Dept.
2007)
Plaintiff fell on a stairway in
defendant's premises. In opposition to defendant's motion for summary
judgment, plaintiff relied on an expert's affidavit that stated
defendant was negligent because the stairway was not equipped with an
appropriate handrail as required by Code and because the stone treads of
the stairs became slippery over time and were not maintained in a
non-slip condition. Reversing an order that had denied defendant a
dismissal, the Court pointed out there was nothing in plaintiff's
testimony that indicated that the absence of a handrail caused or
contributed to her injury. It also stated that plaintiff's testimony did
not allege that a slippery condition was a cause of her fall. Therefore,
since there was no connection between the expert's opinion and the cause
of the accident, and because the fall could just as easily have been the
result of a misstep or a loss of balance, the expert's opinion was
purely speculative and not sufficient to deny defendant summary
judgment.
LABOR LAW
A. MIRO v. PLAZA CONSTRUCTION CORP., 9 N.Y.3d 948, 846
N.Y.S.2d 76 (2007)
In Robinson v. East Med. Ctr., LP,
6 N.Y.3d 550 (2006), the Court of Appeals held that a construction
worker who was aware that he needed an 8 foot ladder to safely complete
his job, and was aware that such a ladder was available upon request but
chose to use a 6 foot ladder, which he fell off of and was injured, was
not entitled to recover under Labor Law § 240(1) as his actions
were the sole proximate cause of his accident. The issue on the
Miro appeal concerned the definition and scope of the
"availability" of a safety device and its impact on Labor Law §
240(1) liability. Here, plaintiff was provided with a 6 foot A-frame
ladder that was partially covered with sprayed on fireproofing material.
Plaintiff was cognizant of the fact that the presence of the material
created a slippery condition and was aware that had he requested a new
ladder form his employer, the new ladder would have been supplied. What
was not clear from the record was whether such an available ladder was
on-site or at some other location. The majority opinion issued by the
First Department awarded defendants summary judgment on plaintiff's
Labor Law § 240(1) claim, finding that the critical factor in
ascertaining whether plaintiff's conduct was the sole proximate cause of
the accident was plaintiff's awareness that a new ladder (or other
appropriate safety device) would be made available on request rather
than where the ladder was located. The dissent, quoting language from
Robinson, that a plaintiff's conduct constituted the sole
proximate cause of the accident, "if adequate safety devices are
available at the job site, but the worker either does not use or misuses
them," asserted that since there was no evidence that the appropriate
ladder was on the job site, plaintiff's conduct could not be the sole
proximate cause of the accident. Rather, the dissent would have awarded
plaintiff summary judgment as defendants had furnished plaintiff with an
unsafe ladder. On submission, the Court of Appeals modified the
intermediate court's order by denying defendant summary judgment. The
Court's only statement in supporting its ruling was "assuming that the
ladder was unsafe, it is not clear how easily a replacement ladder would
have been procured."
B. QUATTROCCHI v. F.J. SCIAME CONSTR.
CORP., 44 A.D.3d 377, 843 N.Y.S.2d 564 (1st Dept.
2007)
As part of a construction project, two employees of an air
conditioning subcontractor were installing a unit above a doorway. To
facilitate the work they rested two planks on top of two temporary
swinging plywood doors to act as a makeshift scaffold on which to rest
the unit. The planks were approximately eight to twelve feet above the
floor. Plaintiff, an employee of a carpentry subcontractor, testified
that he entered the room through one of the temporary doors which caused
the planks to fall and hit him. The defendant offered the testimony of
one of the air conditioning workers who stated that before opening the
door, plaintiff asked if it was okay to enter and was told to wait until
the work was done. Plaintiff moved for summary judgment on his Labor Law
§ 240(1) claim. The defendants moved to dismiss the claim. The
trial court granted plaintiff summary judgment finding that defendant's
failure to secure the planks established Labor Law § 240(1)
liability as a matter of law and that "the safety device [the planks] .
. . fell because it was defective as a safety device." In
modifying the order to deny plaintiff summary judgment, the Court found
that the conclusion by the lower court "that because the planks fell,
they were necessarily inadequately secured, and that, therefore, this
was a § 240(1) violation" was error. The Court stated that it was
plaintiff's burden to show that the planking was not adequately secured
and that because the planking was not adequately secured, the planks
fell. It noted that where a ladder or scaffold collapses for "no
apparent reason" there is a presumption in favor of plaintiff. However,
in this case there existed an issue of fact to be determined by a jury,
"whether the planks were, in fact, adequately secured before plaintiff
walked into one of the supports thus rendering inadequate, by his own
actions, a hitherto adequately constructed scaffold." In other words,
this was not a case where for "no apparent reason" the planks fell, but
where they may have fallen due to plaintiff's own conduct and could thus
possibly result in a finding that plaintiff's conduct was the "sole
proximate cause" of the accident.
C. ZULUAGA v. P.P.C. CONSTR., LLC., __ A.D.3d __, 2007 N.Y.
App. Div. LEXIS 12072 (1st Dept. 2007)
Plaintiff, an employee of an asbestos
removal subcontractor, was struck by a pipe that fell several stories
from a location where demolition workers were cutting and removing pipes
from the structure. The evidence showed that: no safety devices were
used in the pipe removal; other workers had been injured in the same
manner; and plaintiff had made complaints to the demolition contractor
about the hazards. As such, the pipe was a "falling object" and thus an
"elevation-related" risk within the scope of Labor Law § 240(1),
and plaintiff was entitled to summary judgment on his claim.
D. GOMEZ v. 2355 EIGHTH AVENUE, LLC., __
A.D.3d __, 2007 N.Y. App. Div. LEXIS 12251 (1st Dept.
2007)
Plaintiff was entitled to summary
judgment pursuant to Labor Law § 240(1) where plaintiff had been
working on a temporary work platform composed of plywood laid across
floor beams and the plywood gave way causing plaintiff to fall to
shoulder level but not to the floor below.
E. RHODES v. 111 CHELSEA LLC, 44 A.D.3d
430, 843 N.Y.S.2d 237 (1st Dept. 2007)
Plaintiff, a Verizon technician, "was
assigned to splice fiber optic cable in a cable box" within a parking
garage. While performing the work she fell off a ladder and sued to
owner and tenant on, inter alia, a Labor law § 240(1) claim. The
Court ruled that defendants were entitled to summary judgment because it
determined that plaintiff's work did not constitute an "alteration".
Specifically, the Court stated "splicing a fiber into a pre-existing
fiber optic cable for one tenant in a building does not effect 'a
significant change to the configuration or composition of the building
or structure' under Labor Law § 240(1)."
F. BECKER v. ADN DESIGN CORP., __ A.D.3d
__, 2007 N.Y. App. Div. LEXIS 11894 (2d Dept. 2007)
In order to install telephone wires in a
building, plaintiff had to walk on plywood placed on ceiling beams in
the attic of the building. There was a gap between two of the plywood
sheets. In attempting to jump the gap he fell through a sheet rock
ceiling. Finding that plaintiff's work met the definition of an
alteration and thus was protected under the statute, the Court denied
defendant's motion to dismiss plaintiff's Labor Law §§240(1)
and 241(6) claims.
CONTRACTUAL
INDEMNIFICATION
A. URBINA v. 26 COURT ST. ASSOC.,
LLC, __ A.D.3d __, 2007 N.Y. App. Div. LEXIS 12388 (1st
Dept. 2007)
The pertinent issue on this Labor Law § 240(1) case was whether
defendants (building owner and tenant/general contractor) were entitled
to contractual indemnity from a drywall subcontractor. Plaintiff had
been injured when the platform of a Baker Scaffold he was using gave way
causing him to fall to the floor. The scaffold was owned and installed
by the drywall subcontractor. On the date of the accident the drywall
workers had used the scaffold, had finished their work for the day and
had left the site. Plaintiff, an employee of an electrical
subcontractor, borrowed the scaffold, inspected it before using it but
nevertheless was injured when the platform collapsed. The contract
between the tenant/general contractor and the drywall subcontractor
included a broad "arising out of" the work indemnification clause in
favor of the owner and tenant/general contractor. In the "Scope of Work"
clause of the contract the drywall subcontractor was required to furnish
and install scaffolds. The drywall subcontractor argued that the
indemnity obligation was not triggered because the accident did not
arise out of its work but rather that of the work of the electrical
contractor. The appellate court, citing the "Scope of Work" provision's
duty to furnish and install scaffolds and the broad contractual
indemnification clause, rejected the subcontractor's argument and
affirmed an order that had granted the building owner and tenant/general
contractor indemnity against the subcontractor.
B. ARTEAGA v. 231/249 W. 39TH STREET CORP., __
A.D.3d __, 2007 N.Y. App. Div. LEXIS 11215 (1st Dept.
2007)
In this construction accident case, plaintiff, a painter, fell from a
scaffold and sued the building owner. The owner brought a third-party
action against its tenant on contractual and common law indemnification
grounds. The lease, in relevant part, obligated tenant to indemnify the
owner only for costs "for which Owner shall not be reimbursed by
insurance" and stated that each party "waives any claim . .
. insofar as such claim is based on a risk insured under any
insurance policy carried by the waiving party." The evidence showed that
the owner had coverage that covered plaintiff's claims. The Court found
that (pursuant to GOL § 5-321) parties to a commercial lease are
permitted to allocate the risk of liability to third parties through the
mechanism of insurance. Thus, since the terms of the lease as to loss
allocation were clear, the owner’s claims for
contractual and common liability were dismissed.
C. GOLDEN STATE TRADING INC. v. WAYNE ELECTRO SYS., INC.,
__ A.D.3d __, 845 N.Y.S.2d 823 (2d Dept. 2007)
The owner of premises contracted with "A" to install and service an
alarm system. "A" subcontracted the alarm monitoring duties to "B" via a
contract that in part obligated "A" to indemnify "B". Sometime after the
installation the premises were burglarized and the owner sued "A" and
"B". "B" claimed over and against "A" based on the indemnity clause. "B"
moved for summary judgment against the owner and in the alternative, for
conditional summary judgment against "A" based on the indemnification
clause. The motion court, in denying that portion of "B's" motion that
sought indemnity, found that the indemnity clause violated GOL §
5-322.1. [It is unclear whether the court was referring to the language
of the clause, or to "B" being in part negligent and thus not entitled
to the indemnification under the statute.] In reversing that order and
dismissing all claims against "B", the appellate court commented that
the restrictions of GOL § 5-322.1 did not apply to dealer
agreements. [As a general rule, it applies to indemnity agreements in
construction-type contracts.]
D. HAGEMAN v. HOME DEPOT, USA, __ A.D.3d __, 846 N.Y.S.2d
305 (2d Dept. 2007)
Plaintiff, an employee of an electrical contractor, was injured on
defendant's premises in New York. The contractor and defendant had a
maintenance service contract which provided defendant contractual
indemnification and which further provided that Georgia law was to
govern the terms of the contract. Defendant impled the contractor on the
contractual indemnification clause. The primary issue on this appeal was
whether the contractual indemnity provision would be interpreted under
New York or Georgia law. Generally, New York will enforce such a choice
of forum clause unless it can be established that the law of the foreign
forum is offensive to New York public policy. Under Georgia law a
promisee is entitled to indemnification unless the promisee was solely
negligent. The comparable New York statute, General Obligations Law
§ 5-322.1 prohibits indemnity of the promisee if it was "in whole
or in part" negligent. However, prior to 1981, the New York statute was
in accord with the Georgia statute. The Court found that while the
Georgia statute was "more permissive than New York law, it cannot be
said to be 'truly obnoxious' to the law of this State," and thus applied
Georgia law to the interpretation of the contract.
Prepared by Ken King, Esq. Hoey, King, Toker & Epstein
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