Section 240 of the New York Labor Law is often referred to as the “Scaffold Law” because it protects construction workers who work at heights and are at risk of falling.  The statute places liability on owners and contractors who fail to give workers adequate safety equipment.  Section 240(1), however, does not apply only when workers fall but can also apply when workers are injured by falling objects.  The Supreme Court in New York County recently considered a summary judgment motion in a case involving both a falling worker and a falling object in Gericitano v. Brookfield Properties OLP Co., LLC.

hard hatThe plaintiff filed suit against several defendants under Labor Law § 240(1) and moved for partial summary judgment.  The plaintiff was a journeyman electrician who was working at the site of an electrical renovation on the 32nd floor.  He was instructed to finish the installation of a transformer that had been partially installed on the day before. The transformer was in a closet, suspended from the ceiling.

The plaintiff testified that the accident occurred while he was trimming the rods by which the transformer was suspended from the ceiling.  The transformer struck him in the head and knocked him off the ladder.  He also hit his head on the ground and was rendered unconscious.

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Plaintiffs sometimes must file a lawsuit before they have all of the information they need to prove their case.  The defendant may hold information necessary to prove liability.  The plaintiff may be able to obtain this information through the discovery process.  Defendants often move for summary judgment in such cases, but simply pointing to the gaps in the plaintiff’s case is not enough.  The defendant must show that it is entitled to judgment as a matter of law.

bicycle One New York court recently considered whether summary judgment was appropriate when the plaintiff could not identify the individual who caused her injuries in Kurcias v. 1043 Restaurant Corp. but did know the identity of his employer. The plaintiff was injured when a bicycle delivery person struck her as she crossed the street.  She was able to provide a general description of the man on the bicycle.  She saw an employee of the defendant restaurant come out and speak to the cyclist.  The cyclist then left.

Five or ten minutes after she was hit, the plaintiff went into the restaurant and was offered ice for her hand.  She came back to the restaurant two weeks later and asked the manager for the name of the cyclist.  The manager asked if she had not already got the man’s name, and she told him she had not.  The manager then said, “We don’t know anything.” The plaintiff saw the cyclist again six weeks later, riding a bike that looked like the one that struck her.  He was wearing a vest with the restaurant’s name on it.

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Res ipsa loquitur is a legal doctrine that holds that a defendant may be presumed negligent if it had exclusive control of the instrumentality of the injury, if the incident would not occur in the absence of negligence, and the plaintiff did not contribute to the accident.

garage doorA New York court recently considered whether res ipsa loquitur applied in Bonacci v Brewster Serv. Sta., Inc.  The plaintiff was injured when his vehicle fell off a lift at a service station.  The plaintiff was in the bay of the garage with a service station employee, and both men were injured when the vehicle fell.

The injured man and his wife filed suit against the service station and moved for summary judgment on the ground that res ipsa loquitur applied.  The plaintiff pointed to testimony by the defendant’s principal that the accident could not have occurred in the absence of negligence and that the plaintiff’s presence in the bay could not have caused the incident.  The principal did not see the accident but was working in an office nearby and heard the crash.  He testified that the vehicle had been “set up wrong” due to “operator error” or mechanical failure.

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Generally, property owners are not liable for unforeseeable and unexpected assaults on their premises.  They may, however, have a duty if the risk of harm is foreseeable.  Additionally, while landowners generally do not have a duty to control the conduct of a third party, they may have a duty when they are reasonably aware that the conduct needs to be controlled, and they have an opportunity to control it.  The Supreme Court in New York County recently considered whether a drug and alcohol rehabilitation center could be held liable for an alleged assault committed by one of its residents in Smith v. Arms Acres.

hallwayThe defendant was a drug and alcohol rehabilitation center.  At the time of his injury, the plaintiff was a resident in the detox unit of the defendant’s facility.  The plaintiff alleged that he was injured when a woman sitting on the floor in a hallway grabbed his ankle while he was being escorted through the hallway, causing him to fall.  The plaintiff testified that he had never seen or talked to this woman before.

The defendant’s associate executive director testified that the woman was not a detox resident but was likely in that unit because of overcrowding in other areas.  The facility’s rules prohibit residents from loitering in the hallways, but the associate executive director testified that the residents were generally allowed to do so if they did not get too loud.

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Landlords have a duty to maintain their property in a reasonably safe condition.  A landlord may be liable for injuries resulting from its failure to maintain the property in a reasonably safe condition under the circumstances.  In Daly v. 9 East 36th LLC, the Supreme Court of New York County considered the potential liability of a landlord for a house fire.

outletThe apartment was a 700-square foot studio with a main room, a gallery kitchen, three closets, a hall, and a bathroom.  There were seven electrical outlets in the apartment and a fuse box with two fuses.

The plaintiff used several extension cords throughout the apartment, with two or three in the living room area.  On the day of the fire, he had the television, the VCR, a lamp, and a fan plugged into the extension cords in the living room when he went to bed.  He woke up in the burn unit of the hospital.

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Sometimes pedestrians cross the street outside the crosswalk.  Fortunately for accident victims, crossing outside the crosswalk does not necessarily preclude them from compensation from at-fault parties.  In New York, a driver still has a duty to exercise due care to avoid striking a pedestrian.  The Supreme Court in New York County recently considered a defense motion for summary judgment, based in part on the plaintiff’s failure to use a crosswalk, in Kaur v. Reynoso.

crosswalk signThe plaintiff filed suit against the driver and the owner of the Access-A-Ride vehicle that hit her, as well as the MTA and the New York City Transit Authority.  The plaintiff alleged that she was struck by the vehicle while attempting to cross the street.  The defendants moved for summary judgment, contending that the plaintiff could not show they were the proximate cause of her injuries.  They further argued that the plaintiff was at fault for the accident for darting into traffic, and they did not have time to avoid the accident.

The defendant driver testified at his deposition that he was traveling in the second lane from the right, next to the bus lane.  He said he was traveling at about 20 or 25 miles per hour in light traffic. He said the light at the intersection in question was green, and he traveled through it and tried to brake when he saw the plaintiff.  He could not remember if he was able to hit the brakes before striking the plaintiff.

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A New York automobile accident victim may only bring a negligence case against the other party if the victim suffered at least $50,000 in basic economic loss or a serious injury.  The New York Insurance Law defines a serious injury to include certain specified injuries. A medically determined injury or impairment may also be a serious injury if it prevents the person from performing substantially all of his or her usual and customary daily activities for at least 90 of the 180 days immediately after the incident.

hospitalIt is common for defendants in New York automobile accidents to seek summary judgment on the issue of serious injury, as in the case of Romero v. Konneh.

In this case, the plaintiff alleged that he sustained tears in the distal supraspinatus tendon and the anterior glenoid labrum of his right shoulder, requiring surgery.  He also alleged that the accident resulted in three bulging discs.  The court cited to case law holding that acute sprains or strains, torn tendons or ligaments, and bulging or herniated discs can all constitute evidence of a serious injury if there is objective, competent medical evidence showing the injury caused a significant physical limitation.

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It is often said that New York law allows dogs one free bite.  It is more accurate to state, however, that an owner will be liable for injuries caused by a domestic animal if he or she knows or should have known of the animal’s vicious propensities if the injuries resulted from those propensities.  Although the courts have traditionally used the term “vicious propensities,” in Waldman v. Sangiray, the Supreme Court in Nassau County clarified that the word “vicious” might not be the most accurate term to explain the rule.

beware dogThe plaintiff was 82 years old at the time of the incident.  While her three-year-old grandson and she were walking around her neighborhood, the child stepped onto the defendant’s property.  The plaintiff said she also stepped onto the property to pull the child from the grass.  She said she did not recall hearing any barking or growling before the defendant’s Siberian Husky came up to her and “hit” her.  She alleged the dog put his paws on her shoulders, knocking her to the ground.  She alleged the dog “kept hitting her” when she tried to roll over.  She said the dog rolled her onto her back.  The incident lasted for an hour.  The plaintiff said the dog bit her at one point during the encounter.  She was only able to escape with the help of a passerby and the defendant’s son.  The plaintiff alleged that she suffered several injuries, including cuts on her face and ruptured and lacerated tendons in her hand and wrist.  The plaintiff filed suit against the dog owner, and the defendant moved for summary judgment.

The defendant generally kept the dog outside, where he was contained by an electronic fence.  There was no evidence that the dog was violent or had ever bitten anyone, or even growled or bared his teeth.  There was evidence, however, that the dog tended to jump on its owners to greet them.  The defendant testified that he never saw the dog jump on strangers, but the dog did jump on the defendant’s in-laws.  There was no evidence presented that the dog had ever knocked anyone else down.

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Defendants in New York personal injury cases often attempt to prevent a case from going to trial by moving for summary judgment.  To succeed in a motion for summary judgment, the defendant must show that it is entitled to judgment as a matter of law.  To make this showing, the defendant must establish that there is no triable issue of fact.  Generally, a defendant’s motion for summary judgment should not be granted if there is conflicting evidence that speaks to an element of the claim.

cracked concreteIn the recent case of Davidson v. New York City Transit Authority, the defendant moved for summary judgment despite its own driver’s inconsistent testimony about the accident.  The plaintiff was injured when she fell as she exited a city bus, and she sued the New York City Transit Authority (NYCTA).  The NYCTA moved for summary judgment, arguing that it had not breached its duty to provide the plaintiff with a safe place to exit the bus.

New York case law has held that a common carrier, like a city bus, must stop at a safe place for its passengers to enter and exit the vehicle.  The common carrier may be liable if the driver stops the bus in a location that requires the passenger to cross a dangerous or defective path to board or exit the bus.  Even if the driver stops at an unsafe location, the common carrier may not be liable if the driver did not know of the dangerous condition.

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New York Labor Law protects construction workers and places liability on owners and contractors under certain circumstances. Plaintiffs injured in a construction accident often bring claims under multiple sections of the Labor Law, as in Daniel v 384 Bridge St. LLC.

wood boardThe plaintiff alleged he was injured when he stepped on the edge of a piece of plywood covering a hole in the floor while walking through the construction site.  The plaintiff filed suit against the owner of the construction project, the construction manager, a subcontractor hired to perform concrete work, a subcontractor hired to perform carpentry, and his employer, which had been hired to do the window work.  The plaintiff filed claims for common law negligence and violations of New York Labor Law §§ 200, 240(1), and 241(6), and his wife asserted a claim for loss of consortium.  The defendants moved for summary judgment.

Pursuant to § 240(1), known as the Scaffold Law, contractors and owners must provide certain safety devices, including scaffolding, hoists, and ladders, to protect workers.  The court granted the motion as to the § 240(1) claim, finding that the section did not apply because there was no allegation that an elevation or gravity-related risk contributed to the injury.

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