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Broken sidewalk badly in need of maintenance

February 18, 2020

NYC out of possession landlords liable for sidewalk maintenance

“Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition. Under this duty of care, a subject owner is liable for personal injury claims arising from the owner’s negligent failure to remove snow and ice from the sidewalk (id. § 7-201[b]). The Code makes no exception for out-of-possession landowners and so we hold that the duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner. Thus, defendants are not entitled to summary judgment as a matter of law due solely to the owners’ out-of-possession status.”

-Xiang Fu He v. Troon Management, Inc., 2019 NY Slip Op 07643

The New York Court of Appeals recently (October 24, 2019) decided Xiang Fu He v. Troon Management, Inc., 2019 NY Slip Op 07643, which essentially decimated a defense that out-of-possession landowners in the City of New York relied on in slip and fall litigation arising out of alleged negligence in failing to maintain sidewalks abutting a landowner’s premises. In Xiang Fu He, the Court of Appeals reversed the Appellate Division’s granting of summary judgment to the out-of-possession landowner defendant on the grounds that landowners owe an absolute, non-delegable duty to pedestrians under the New York City Administrative Code to maintain sidewalks abutting a landowner’s premises. In the Appellate Division, the defendant argued that the denial of summary judgment by the Supreme Court was error because the defendant was an out-of-possession landlord who had an agreement with the lessee of the property in which the lessee agreed to maintain the abutting sidewalks. In New York City leases, it is common for the lessee to be responsible for maintenance of the exterior and interior portions of the leased property (including the abutting sidewalks), with the landowner only being responsible for structural or design defects. The Appellate Division agreed that it was error on the part of the Supreme Court to not grant summary judgment in favor of the defendant on the out-of-possession landowner defense and reversed the Supreme Court and granted the defendant summary judgment. The Court of Appeals disagreed with the Appellate Division’s granting of summary judgment and reversed.

Prior to Xiang Fu He, it was a common defense for an out-of-possession landlord to argue that it did not owe the plaintiff a duty to maintain the sidewalks abutting the premises because the lessee had been delegated that duty under the lease. The Court of Appeals has now taken a different view of the application of New York City Administrative Code Section 7-210. Under Section 7-210:

It shall be the duty of the owner of real property abutting any sidewalk [. . .] to maintain such sidewalk in a reasonably safe condition.
Notwithstanding any other provision of law, the owner of real property abutting any sidewalk [. . .] shall be liable for any injury to property or personal injury [. . .] proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include the negligent failure to remove snow, ice, dirt or other material from the sidewalk.

Under Xiang Fu He, the Court of Appeals has taken the position that the duty imposed on landowners by Section 7-210 is a non-delegable one, meaning that a landowner has an absolute duty to pedestrians to maintain the sidewalks abutting its premises. Even if there exists a separate contract or lease in which a lessee or third-party is obligated to maintain the sidewalks, it will not be a defense to the absolute duty imposed by Section 7-210.

In reviewing the statutory language of Section 7-210, the Court of Appeals held that the clear, unambiguous language of § 7-210 demonstrates that the City of New York meant to impose a non-delegable duty upon landowners in maintaining the abutting sidewalks. It stated, “‘[O]wner’ means all owners, regardless of their out-of-possession status and whether the owner has contracted with the lessee or another to keep the sidewalk in reasonably safe condition.”

Xiang Fu He has certainly upended the out-of-possession landlord defense that many landlords in New York City were able rely upon to absolve themselves of liability in slip and falls. But, under the new Xiang Fu He ruling, those days are past.

The Court of Appeals summed it up best, saying, “While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210.”

Anthony joined Perez & Morris in 2017. Prior to joining Perez & Morris, Anthony practiced with a law firm that handled personal injury, premises liability, and real estate litigation, amongst various other matters. He is a member of the New York State Bar Association, New Jersey State Bar Association, and the Columbian Lawyers Association of Rockland County.

Anthony is also an adjunct professor of Business Law at St. Thomas Aquinas College in Sparkill, New York, where he graduated magna cum laude in 2011 with a Bachelor’s Degree in History and a minor in Performing Arts. Read more

October 1, 2019

Motorized carts in retail stores

On September 19, 2019, in Rieger v. Giant Eagle, Inc., Slip Opinion No. 2019-Ohio-3745, the Ohio Supreme Court issued a decision involving motorized carts provided to patrons of retail stores. In the case, Giant Eagle provided a motorized cart to Ruth Kurka. Kurka, who was diagnosed with dementia, had never been trained on how to operate a motorized cart, but had been driving motorized carts for well over a year, drove them on a regular basis, and had no accidents. A Giant Eagle representative testified at deposition that there are no operational instructions on the carts, Giant Eagle assumes that all individuals who use the carts know how to drive them, and warnings on the carts are for the cart operators. Evidence was presented of 117 incidents involving motorized carts at various corporate-owned Giant Eagle stores from 2004 to 2012.

Barbara Rieger was at the Giant Eagle store, standing at the bakery counter, when her shopping cart was hit by Kurka’s motorized cart. Rieger was knocked to the ground and injured. Rieger filed a personal injury action against Kurka and Giant Eagle. Rieger asserted claims against Giant Eagle for negligence and negligent entrustment. The trial court denied Giant Eagle’s motion for directed verdict, and the jury awarded Rieger $121,000 in compensatory damages and $1,198,000 in punitive damages. The court of appeals affirmed. On further appeal, the Ohio Supreme Court reversed the court of appeals and held that there was insufficient evidence of causation as a matter of law to support the claims of negligence and negligent entrustment, and therefore, the trial court should have granted Giant Eagle’s motion for directed verdict.

Despite the outcome, the Court’s decision should nevertheless serve as a warning to retailers that provide motorized carts to patrons because, by implication, it held that claims for negligence and/or negligent entrustment against retailers that provide motorized carts are viable causes of action if the plaintiff can establish the elements of the claims. The Court found that Rieger failed to offer evidence that Giant Eagle’s failure to provide Kurka with instruction or training on how to operate motorized carts caused Ringer’s injuries. Therefore, for example, had Rieger provided testimony from Kurka that training would have prevented the accident and/or testimony from an expert witness that training would have prevented the accident, she could have satisfied all of the elements of her claims.

Retailers that provide motorized carts to patrons should institute protocols that could include vetting of patrons to whom motorized carts are provided, warnings to such patrons, training or instruction to such patrons, and warnings to other patrons of their establishments.

Mark comes to Perez Morris with over 20 years’ experience in business litigation and insurance defense work. Mark started his legal career at a small insurance defense firm, where he became the go-to person for business litigation and matters outside the “red light/green light” fact pattern.

Mark enjoys the academic aspects of the practice of law, including drafting dispositive motions and appellate briefs, he really excels on his feet in the courtroom, having tried nearly 100 cases in state and federal courts throughout Ohio. Mark’s style endears the jury to him and his clients and conveys the professionalism, creativity, and persuasiveness needed to drive results. Read more

Man and woman looking at a website on a tablet and a laptop

August 6, 2019

Southern District of New York dismisses website accessibility claim under the Americans With Disabilities Act on mootness grounds

In her June 4, 2019, Opinion and Order, the Honorable Katherine Polk Failla, District Court Judge for the Southern District of New York, broke new ground, in allowing an ADA case, claiming website inaccessibility, to be dismissed on the grounds of mootness. In Diaz v. The Kroger Co., 1:18-vc-07953 (KPF), Judge Failla found in favor of The Kroger Co. and dismissed the plaintiff’s First Amended Complaint, which alleged that Kroger’s website discriminated against individuals with disabilities–specifically blind individuals, in that its website did not meet ADA standards for website accessibility–on the grounds of both lack of subject matter jurisdiction and lack of personal jurisdiction.

The Court’s Findings on Mootness:

In dismissing the plaintiff, Edwin Diaz’s, First Amended Complaint on the grounds of lack of subject matter jurisdiction, the Court held that Kroger was able to address the deficiencies that other sister courts have recognized in the supporting documentation submitted by similarly situated defendants in website accessibility cases claiming that their cases were mooted by virtue of them being accessible and compliant with ADA standards:

The instant case is different. [Kroger’s] affidavit addresses the deficiencies that courts have identified in defense showings made in support of mootness arguments. [. . .] Significantly, [Kroger] does not present some future plan for remediation of the Website, or some conclusory assertion that the Website is today compliant with the ADA. Instead, [Kroger] avers specifically that (i) Defendant undertook compliance with the WCAG standards before the lawsuit was filed; (ii) the Website is today compliant with those standards; (iii) [Kroger’s representative] personally confirmed that the specific barriers to access identified in Plaintiff’s initial and amended complaints “have been remedied and that no such barriers to access, as alleged, still exist with the website”; (iv) Defendant has no intention of undoing those changes or regressing to non-compliance with the ADA; and (v) Defendant commits “to keep its website up to date and compliant with all applicable standards to make the website as accessible to all as possible.” This is a level of detail that the Court has not observed in other cases it has reviewed.

Judge Failla went on to reject plaintiff’s contention that web accessibility cases could never be mooted, stating that such a sweeping proposition is unnecessary and “would insert a brittle, technology-specific exception into the mootness doctrine that would itself become obsolete in an era of rapidly-changing technology.”

In summarizing her rationale, Judge Failla stated, “To review, Plaintiff identified several barriers to his use and enjoyment of the Website. Defendant removed those barriers, brought the Website into compliance with Plaintiff’s preferred WCAG 2.0 standard, and commits to monitoring technological developments in the future to ensure that visually-impaired individuals have equal access to the Website. On this record, Defendant has met the stringent showing required by the Supreme Court’s mootness precedents.”

The Court’s Findings on Lack of Personal Jurisdiction:

Judge Failla went even further in her opinion and order, granting dismissal of the Plaintiff’s First Amended Complaint on a second and independent basis. Judge Failla found that since her discussion and holding on mootness broke new ground, and that a reviewing court may ultimately disagree with her analysis, that she would address the second independent basis for dismissing Plaintiff’s First Amended Complaint—lack of personal jurisdiction.

The Court found that Kroger did not have any brick and mortar stores within the State of New York. Additionally, the Court went on to Kroger’s website and attempted to order goods for shipment into the State of New York. Upon attempting to order goods, the Court confirmed that Kroger does not actually ship into the state. Upon this finding, and in conjunction with the fact that Kroger does not have any brick and mortar physical locations in the State of New York, Judge Failla found that the Court lacked personal jurisdiction over Kroger consistent with the requirements of due process and granted Kroger’s motion to dismiss on the independent ground of lack of personal jurisdiction.

Judge Failla’s decision was a groundbreaking decision for defendants in the Southern District of New York in website accessibility cases under the ADA. It now gives defendants an avenue in which to moot cases that were previously believed to be incapable of being mooted, so long as they meet the stringent requirements of the Supreme Court’s cases in demonstrating that the case itself is moot.

*The author of this article took part in drafting the motion to dismiss on behalf of The Kroger Co.

White oxycontin pills on a blue background

July 18, 2019

BWC phases out coverage for Oxycontin

For all injuries occurring after June 1, 2019 the Ohio BWC will no longer cover Oxycontin or generic sustained-release oxycodone, given their potential for abuse and dependence. Any injured workers who are currently on these medications will have until December 31, 2019 to discontinue the use of these medications or change to another medication on the BWC’s formulary. This action does not affect the continued use of immediate-release oxycodone for the treatment of acute pain.

According to a recent news release issued by the BWC, the agency is encouraging injured workers to discuss other effective painkillers with their physicians and also to explore non-medication treatment options for chronic pain. The news release also encourages injured workers who want to be free of opioid use altogether, to discuss the issue with their physician of record or the MCO assigned to their claim, as the BWC will reimburse for certain services to assist in this process.

Beth has represented and advised employers for thirty years regarding all aspects of their workers’ compensation and risk management programs. Beth’s philosophy is that preparation and attention to detail are the hallmarks of a successful defense plan. Her practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation.

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Construction worker on the job who had an accident

May 21, 2019

Intoxication defense to Ohio workers’ compensation claims

Nothing can be more frustrating to Ohio employers than an employee filing a workers’ compensation claim for an accident that was clearly caused by his own intoxication. In Ohio, the intoxication of an injured worker can typically be asserted as a workers’ compensation defense in two ways.

Ohio R.C. 4123.54(A)(2) provides that workers’ compensation injuries are not compensable when, “Caused by the employee being intoxicated, under the influence of a controlled substance not prescribed by a physician, or under the influence of marihuana if being intoxicated, under the influence of a controlled substance not prescribed by a physician, or under the influence of marihuana was the proximate cause of the injury”.

Additionally, R.C. 4123.54(B) provides where, an employer has posted written notice to employees that the results of, or the employee’s refusal to submit to, any chemical test described under this division may affect the employee’s eligibility for compensation and benefits pursuant to this chapter and Chapter 4121. of the Revised Code, there is a rebuttable presumption that an employee is intoxicated, under the influence of a controlled substance not prescribed by the employee’s physician, or under the influence of marihuana and that being intoxicated, under the influence of a controlled substance not prescribed by employee’s physician, or under the influence of marihuana is the proximate cause of the injury where a qualifying drug test is administered within a requisite number of hours subsequent to the injury.

Recently, we defended a claim in which the claimant argued that his submission of a non-conforming urine specimen (incapable of being tested as the temperature of the specimen was not within the required range for a liquid coming from a human body) constituted compliance with R.C. 4123.54(B). Amazingly, the district and staff hearing officers agreed with this argument, holding that the claimant did provide a urine sample and the statute does not specifically state it must be a compliant sample!

In this case it was necessary to file a motion for reconsideration and point out that it the policy of the Industrial Commission cannot be that a claimant can thwart the legislative intent regarding drug and alcohol in a work place by submitting an altered or non-complying urine specimen incapable of being tested. At the hearing we argued that the policy of the Industrial Commission should be consistent with the policies of the American Association of Medical Review Officers and the Medical Review Officer’s Certification Counsel, both of which deal which with drug and alcohol testing. Ultimately the Industrial Commission agreed with our position and held that the claimant must provide a compliant specimen that is capable of being tested.

Recently there has been a great deal of concern regarding Ohio’s legalization of medical marijuana. R.C. 3796.02. Fortunately, nothing in Ohio’s medical marijuana statute interferes with an employer’s right to discharge or take other employment actions based on an employee’s use of medical marijuana. Additionally, nothing in the statutes authorizes legal action against an employer for taking employment actions based on an employee’s use of medical marijuana. In summary, marijuana still remains illegal under Federal statutes, and nothing in Ohio’s legislative scheme should interfere with an employer’s right to set its own drug-free workplace policies. However, because this issue has come to the forefront, we do suggest that our clients review their current workplace policies and manuals to specifically address their positions concerning medicinal marijuana.

Prior to entering private practice, Dennis served in the Ohio Attorney General’s Office’s Workers’ Compensation Section for 10 years. Dennis’ practice since then has included all areas of workers’ compensation defense and employment litigation and counseling. Read more

May 15, 2019

Absolute Defense: Plaintiffs who have failed to disclose their claims in bankruptcy proceedings

After a lawsuit is filed, as defendants, we routinely review the claims against our standard checklists, such as statutes of limitations, jurisdiction/venue, elements of the claims and removability to federal court. If you want to potentially achieve hero status, add a bankruptcy check to your standard review.

If a claim arises and the plaintiff later files a bankruptcy petition but fails to disclose the claim on his or her bankruptcy schedules, there is a good chance that the later-filed lawsuit will be barred under the concept of judicial estoppel.

Consider the case where a claimant suffers a personal injury or employment discrimination in 2015. In 2017, the claimant files a bankruptcy petition and does not disclose any claims on his or her sworn bankruptcy schedules and receives a discharge. In 2018, the claimant, now plaintiff, files a lawsuit on the personal injury or employment discrimination. The claims will likely be barred.

The judicial estoppel doctrine applies when a defendant shows that the plaintiff: (1) took a contrary position (i.e. that no claims existed); (2) under oath in a prior proceeding; and (3) the prior position was accepted by the court. Every debtor in a bankruptcy has an affirmative obligation to schedule assets, including known claims or causes of action. Failure to list a claim in a sworn schedule operates as a representation that the claim does not exist. Once the bankruptcy court processes the bankruptcy to final disposition, or even issues orders based on the debtor’s filings, then the doctrine is implicated.

Ohio state and federal courts routinely and consistently bar claims under the doctrine of judicial estoppel. These claims arise in personal injury, employment discrimination and a variety of other civil actions. This is a potentially valuable and game changing tool in your arsenal of defenses. So, make sure you check your plaintiff’s post-claim bankruptcy filing history, you could be a hero!

Troy helped form the firm in July of 1999. Prior to that he was a partner in the litigation and construction groups at a 90 lawyer Columbus firm. His main practice is commercial and construction litigation, including large loss property recoveries, where he has achieved successful jury verdicts and arbitration/mediation results – including many in excess of a million dollars.

Troy is a member of the American, Ohio and Columbus Bar Associations, the Ohio Bar Admission’s Committee, and past member of the Construction Owners Association of America and Builder’s Exchange of Central Ohio. Read more

April 3, 2019

New York Labor Law statutes

In New York there are two separate and distinct bodies of law known as the New York Labor Law. One set of the Labor Law statutes deal with employment law, the other body of law, which is a separate and distinct body of law known as the New York Labor Law Statutes, deals with injuries caused and suffered by workers on construction sites.

The New York Labor Law Statutes came about in New York in the 19^th Century. At the time the scaffolding law was being enacted, the federal government had not yet enacted certain federal protections such as the Occupational Safety and Health Administration or workers’ compensation programs. The legislative history and the intent behind the New York Labor Law statutes was to provide special protections to workers who were injured in construction accidents. When you think of all the photographs you have seen of the Manhattan skyline, there are always a few pictures which depict workers on steal beams above the city either having lunch or working on the building. It was for those workers that the legislature enacted these statutes to protect them and their families from injuries and death.

Labor Law Sections 200, 240(1), or 241(6) encompass all aspects of construction, and include renovations, alterations, or repairs of any structures or buildings. If a worker is injured due to a violation of any of these statutes, the injured worker may be entitled to recover damages regardless of who was responsible for the accident.

New York Labor Law § 200

New York Labor Law § 200 codifies the common law duty of owners of properties and general contractors doing work on the property to protect the safety “of all persons employed on the job-site or lawfully frequenting such places.” For a plaintiff to prevail under the safe workplace doctrine, the injury must be related to the workplace, and the plaintiff must show that the owner or contractor controlled the area or had notice of a dangerous and/or defective condition. The definition of “workplace” or “worksite” within the Labor Law is broadly interpreted. However, the definition is not only limited to the actual construction site, but it also includes nearby or adjoining areas such as passageways or walkways to and from the work area. Liability will be imposed upon a landowner under Labor Law § 200 when a plaintiff’s injuries were a result of a dangerous and defective condition at the construction site, rather than the manner in which the work was performed.

While defenses are limited in Labor Law cases, one defense allowing the landowner, under Labor Law § 200, to escape liability, is to show that they did not exercise supervision and control over the work being performed at the site and did they not have actual or constructive notice of the unsafe condition causing the accident. Begor v. Mid-Hudson Hardwoods, Inc., 301 A.D.2d 550, 754 N.Y.S.2d 57 (2d Dep’t 2002).

Ordinarily, if the landowner or lessee (tenant) contracts out the construction, renovation and/or demolition, the landlord or tenant may not exercise control over the construction site and the responsibility usually lies with the general contractor and its subcontractors for job safety. However, the owner should, before initiating any construction, remodeling, or demolition on the property, make sure that they have properly crafted contractual agreements signed by the owner and contractor that adequately set forth who is responsible for the construction, renovation and/or demolition, and that there exists a properly worded defense and indemnification clause in the event that an accident occurs on the job site.

New York Labor Law § 240 (1)

Labor Law § 240 (1) more commonly known as the New York “Scaffolding Law,” relates to gravity-related falls. The law was implemented to protect workers from falls from ladders, scaffolding or any other gravity or elevated injuries to construction workers and to protect workers who are injured by materials which have fallen from an elevated height due to improper hoisting, securing, etc. The statute places the responsibility of a plaintiff’s fall from an elevated height on the property owner and the general contractor for failing to furnish proper and non-defective safety devices to alleviate the risks. According to New York Labor Law, it is the responsibility of the property owner, general contractor and/or sub-contractor to furnish proper safety lines, harnesses, guardrails, etc., which are necessary to guarantee a worker’s safety while working at an elevation.

The law imposes absolute liability on the construction companies, property owners and/or contractors who are responsible for maintaining a safe work environment. While the statute does not use the language strict or absolute liability, New York Courts have held that the employer has an “absolute duty” to furnish safe scaffolding and would be liable when they failed to do so and injury resulted (Maleeny v. Standard Shipbuilding Corp., 237 NY 250, 253 [1923]). Additionally, the New York Courts have also found liability under Labor Law § 240 (1) as “absolute” in the sense that owners or contractors not actually involved in construction can be held liable (Haimes v. New York Telephone Co., 46 NY2d 132, 136 [1978]), regardless of whether they exercise supervision or control over the work (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]). Intending the same meaning as absolute liability in Labor Law § 240 (1) context, in 1990 the Court introduced the term “strict liability” (Cannon v. Putnam, 76 NY2d 644, 649) and from that point on used the terms interchangeably.

What makes this statute so difficult to defend is that throughout the history of the scaffold law and its amendments, the statutory language has never explicitly barred contributory negligence as a defense. However, in 1948 the New York Courts reasoned that the statute should be interpreted that way if it is to meet its objective (Koenig v. Patrick Constr. Corp., 298 NY 313, 316-317). Thus the New York Courts have constantly and consistently held that contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff’s injury (Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 521 [1985]).

Further our Courts have emphasized two (2) points in applying the doctrine of strict or absolute liability. First, that liability is dependent on a statutory violation and proximate cause. In Duda v. Rouse (32 NY2d 405, 408 [1973]), the Court held that a “[v]iolation of the statute alone is not enough; plaintiff [is] obligated to show that the violation was a contributing cause of his fall,” and second, that when those elements are established, contributory negligence cannot defeat a plaintiff’s claim. Therefore, section 240 (1) is an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions (Mullen v. Zoebe, Inc., 86 NY2d 135, 143 [1995]; Bland v. Manocherian, 66 NY2d 452, 461 [1985]).

Because the terms “strict liability” and “absolute liability” have different meanings in different locations, a great deal of ambiguity, as well as uncertainty, has arisen in New York’s jurisprudence when dealing with New York Labor Law §240 (1), including a mistaken belief that a fall from a scaffold or ladder, in and of itself, will result in an award of damages to the injured party. The New York Appellate Division in order to defray that ambiguity has clearly held: “that is not the law, and we have never held or suggested otherwise.” (See, Blake v. Neighborhood Housing Service of NYC, 11 N.Y.3d 280 (2003); Narducci v. Manhasset Bay Assoc. (96 NY2d 259, 267 [2001]), (“Not every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)”); Beesimer v. Albany Avenue/Route 9 Realty, Inc. (216 AD2d 853, 854 [3d Dept 1995]). (“the mere fact that [a plaintiff] fell off the scaffolding surface is insufficient, in and of itself, to establish that the device did not provide proper protection”); Alava v. City of New York, 246 AD2d 614, 615 [2d Dept 1997] (“a fall from a scaffold does not establish, in and of itself, that proper protection was not provided”).

Therefore, there can be no liability under section 240 (1) where there is no statutory violation and the worker’s actions (i.e., his negligence) are the “sole proximate cause” of the accident. In Blake, supra, the Court held that, “extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.”

Lastly our Courts have expressly stated that the language of Labor Law § 240 (1) “must not be strained” to accomplish what the Legislature did not intend” (citing, Martinez v. City of New York, 93 NY2d 322, 326 [1999]). “If liability were to attach even though the proper safety devices were entirely sound and in place, the Legislature would have simply said so, or made owners and contractors into insurers. Instead, the Legislature has enacted no-fault workers’ compensation to address workplace injuries where, as here, the worker is entirely at fault and there has been no Labor Law violation shown.”(See, Blake, supra).

New York Labor Law Section 241(6)

This statute is also known as the “Worker Safety Statute,” which provides that the owner of the premises can be held liable for failure to provide adequate safety devices (that is, unless you are talking about only a one or two-family dwelling). It is axiomatic that section 241(6) of the Labor Law was designed to be unified with Part 23 of the New York Industrial Code (also known as “Rule 23”), a set of rules promulgated by the Commissioner of the New York State Department of Labor setting forth specific safety requirements that apply to certain types of heavy construction, demolition and excavation work performed anywhere within the State of New York. Labor Law 241 (6) provides for specific provisions that should be employed and used when performing construction, renovation, excavation on work-sites.

New York Labor Law § 241(6) demands certain requirements and responsibilities for contractors and property owners that, when not followed, make that contractor and owner liable for any injuries that result. The following are what is required of contractors and property owners: proper construction of work sites; necessary safety equipment and training; appropriate safe-guarding of the site; safe operation of equipment; and proper conduct to ensure safety.

Plaintiff, in order to recover damages under the first sentence of subsection six, must show that the landowner had actual supervision or control over the injury-related work. However, if a worker who was injured can show that he or she was injured due to a violation of a specific Industrial Code provision, then the worker may not have to show actual control or supervision by the landowner or contractor in order to state a claim.

We at Perez & Morris have the experience necessary to guide you through theses difficult waters and are willing discuss your case and represent you in the event one of these types of cases arise.

Michael heads up the New York office of Perez & Morris. Prior to joining Perez & Morris, Michael was the managing partner of Myerowitz, Jeffrey & Glidden and his main practice area was in defense litigation and family law. Prior to attending law school, Michael was in law enforcement and retired in 1997 as a sergeant in charge of the Special Investigation Unit. Michael also worked as a detective with respect to crimes against persons, as well as undercover narcotics investigations.

Admissions: New York Bar and U.S. District Court Southern District of New York, U.S. District Court Eastern District of New York. Read more

March 11, 2019

The value of teaching as a practicing attorney

Working at Perez & Morris has provided me the opportunity to teach part-time as an undergraduate adjunct professor at my alma mater. I’ve been teaching for four years, originally beginning as an assistant professor of Education Law and then moving on to teaching Business Law II and most recently Hospitality Law. One of the many benefits to teaching law courses in an undergraduate institution is that most law courses are survey courses—meaning that the subject area encompasses many different fields of the law and requires the ability to connect those various fields to the subject matter. This would be a relatively easy task for any practicing attorney who has a solidified base of knowledge in a certain field. However, one of the first challenges comes in providing students their first insight into the US legal system.

One thing that has become very obvious from when I was a college student, is that the younger generation does not seem to have a solid background in civics education. Whereas students in my own generation had a basic understanding of civics (as most of us were required to take government and economics courses in high school), it seems that those requirements have been tossed out the window. The challenge for a law professor teaching legal concepts to undergraduate students in this day and age is to first off create a baseline of understanding of not just only the legal system in general, but to give them a broader insight into the workings of our government. Many would be surprised to find out that the younger generation doesn’t necessarily understand the basic concept of Federalism in our government. So the first couple of classes (regardless of the course being taught) are generally going to be spent as an overview of the Constitutional framework that our Federal government has set up. Those lessons have become more fun since “Hamilton” has exploded on Broadway. Introducing key players to the students and remarking on their contributions to the framework our forefathers set up makes the class more entertaining and provides a solid jumping off point for students to gain a deeper understanding of the material.

Once the basic underpinnings have been taught, the real work begins. Most areas of the law that are taught in these survey courses are similar and overlap. When teaching Education, Business, and Hospitality courses, there are always sections devoted squarely to Employment Law (how should every business owner/hospitality professional/administrator handle requests for time off or requests for accommodations and what are their requirements under the Americans with Disabilities Act?), Tort Law (what is the duty all landowners owe to persons who enter their premises?), and Contract Law (what are the basics of forming a valid, enforceable contract and what rights do parties have under the contract, especially in the context of the employee/employer relationship?). However, each course presents its own unique challenges and legal concepts.

I believe it is safe to say that many attorneys have a general idea about many different areas of the law, most likely from their law school days or from the dreadful days of studying for the bar exam. But, each attorney may not have the required ability to go in depth on each subject that is presented. You may know the basic concepts, but can you discuss intelligently the nuances of that area of the law? For most attorneys, there are wide gaps in certain areas of the law, but those same attorneys probably have very intimate knowledge of certain other areas of the law that their practice focuses upon. This is just the nature of the business. Teaching these survey courses however, forces professors to become fully acquainted with various subject areas, areas that are probably generally beyond the scope of what they have practiced. I like to think that when teaching a survey course, you are very unlikely to find an attorney who has practiced in every single area that the textbook teaches about. The texts would lead students to believe that every attorney who practices in the Hospitality area is an expert in tort law, contract law, employment law and workers’ compensation law, intellectual property law, immigration law, real property law, international law, secured transactions, and criminal law, just to name some of the areas that are taught. While there may be attorneys who have this wide breadth of knowledge solely from their practice, it is most likely safe to assume that not many attorneys have the skill and expertise to handle cases in all these areas of law without committing some form of professional malpractice and an ethical violation, as most states (if not all) would require an attorney who is unfamiliar with an area of law to either turn down the case and refer it out or take the case on with the help of an attorney who has significant practice expertise in the area. But therein lies the reward for those attorneys who have the privilege of teaching courses such as these: you must become familiar enough with these areas of the law to be able to intelligently inform the students about what their requirements are under the law and how they can comply with laws and regulations that affect their certain professional area.

Being a practicing attorney who has been given the ability to teach law courses to undergraduate students, I could not recommend it enough to those who have the urge and ability to do it. It sharpens your public speaking skills, forces you to gain insight into areas of the law that you may not be as familiar with, and it gives you the reward of passing on your knowledge to the future generation. At the end of every semester, I can only hope that the students have learned at least one thing that will stay with them into the days when they start their own careers.

Photo of slippery floor with a caution sign and people walking near it

February 18, 2019

Don’t give up on summary judgment proceedings in premises liability situations

Most of us are familiar with the Summary Judgment process. If pursued, it is usually a chance for a defendant to explain to the Court why the claimant’s case could not possibly succeed at trial. Premises Liability claims in Ohio are particularly susceptible to summary judgement given the state’s adoption of the “open and obvious” doctrine as well as the “two-inch” rule. As a result, setting the claim up for a motion for summary judgment is often the primary goal when a claim is asserted and litigation commenced. However, most of us are also familiar with frustrating denials of summary judgment. How could a parking block not be open and obvious? How could a premises owner have known of a spill that occurred just moments before a claimant’s fall? Although individual results and case law can seem to be inconsistent, the benefits in filing a motion for summary judgment usually outweigh the determents considerably.

Taking the “glass is half empty” approach, let’s consider the primary detriment; the cost of filing a motion for summary judgment. Deposition costs and attorney fees can range from a few thousand to several thousand dollars for what some consider a futile effort, or less than likely chance at success. Without a doubt, filing a motion affects the bottom line. However, the glass is truly half full (if not more) as there is consistently a good chance it helps in the long run. A) it could result in a defense verdict. Best case scenario – no indemnity payments, no more litigation fees, B) it puts pressure on the claimant to resolve the claim or C) it compels the claimant to set forth the best evidence to overcome summary judgement.

In most cases a pending motion for summary judgment fosters reasonable settlement negotiations. Claimants and claimant’s counsel have a vested interest in ensuring some recovery for the alleged loss. Most claimant’s counsel, if not claimants themselves, are well aware that a motion for summary judgment may be granted despite what claimant’s counsel may deem clear issues of fact. As a result, settlement negotiations often become reasonable when a motion for summary judgment is pending. This is a key time to resolve a case, as the claimant is ensured some recovery and the defendant is assured a capped indemnity value while avoiding the time and expense of trial preparation. Finally, if nothing else the motion flushes out issues, strengths and weaknesses in the claim, which better enables the defense to evaluate the case and prepare the defense. If the claimant is relying on one specific fact to avoid summary judgment, that fact can be addressed more directly in trial preparation to enhance the defense or perhaps establish grounds for a directed verdict.

Recently, I had the opportunity to file motions for summary judgement in two premises liability cases. The first (“Case I”) involved significant injury, while the second (“Case II”) had questionable damages. Regardless, both claims were heading toward trial as no reasonable settlement negotiations were on the horizon. Case I entailed undisputed facts of water on the floor, a customer slip and fall, and a broken leg. Multiple depositions were taken and conflicting stories described how water got on the floor. Was there a spill that was mopped up and wet floor signs put out, or did a customer’s child spill water on the floor just before the fall? To foster summary judgment analysis, the claimant’s version of the facts was offered that a child had spilled water on the floor. It was then argued the premises owner had no knowledge of the spill before the fall. Strategically, the claimant could have utilized a contrary deposition to argue there was a known spill that was cleaned up and for which wet floor signs were posted. Maybe this would have created an issue of fact. However, the claimant stuck to her version of the facts, causing the Court to determine there was no evidence the premises owner had knowledge of the spill, actually or constructively. Summary judgment granted.

In Case II video surveillance captured the claimant slip and fall in a buffet aisle. The claimant does not know what caused her to fall, or how long the substance on the floor had been on the floor. The premises owner had no knowledge of any foreign substance on the floor, so it set up classic grounds for summary judgment. The only issue was an allegation that the claimant’s cousin, also in the video, could potentially identify the substance and link it to a failure by the premises owner to keep the area clear. Despite this potential assertion, a motion was filed. Time to oppose the motion passed, while claimant’s counsel tried to secure the witness. It never happened and the motion was granted.

Both of these cases involved issues that some would argue could relatively easily overcome summary judgment. But the outcomes cannot be disputed. One thing is for certain, summary judgment will not be granted unless a motion is filed. So if there is a good faith basis to file for summary judgment, it should be given strong consideration.

Drew Wachtman is a Premise Liability and Insurance Coverage litigator in the Perez & Morris Columbus office. He has substantial first chair jury trial and appellate experience, as well as experience with various business formation transactions. Drew’s litigation experience has enabled him to practice extensively throughout the courts in Ohio. Drew also consults on business and risk management issues.

Drew and his wife are the proud parents of three daughters. Read more

January 2, 2019

Beware of the company you keep…At least in California

Starting January 1, 2019, persons using California port drayage commercial drivers may unknowingly assume employment liabilities for those drivers. Senate Bill 1402 is now law, and it makes customers of such services potentially liable for unpaid wages, employment taxes, workers’ compensation insurance, or other liabilities associated with the misclassification of port drayage drivers as independent contractors. In an effort to clean up poor employment practices involving port drayage drivers, and failed attempts to make all such drayage drivers employees (and not independent contractors), SB 1402 makes every customer of port drayage transportation services, jointly and severally liable for a motor carrier’s failure to properly pay and insure such drivers. If your motor carrier uses port drayage drivers who are covered by a collective bargaining agreement, you will not be subject to the liabilities imposed by this new law. If, however, this is not the case, possible measures to address the potential liability are as follows:

1. Re-evaluate whether you need to use California ports, and when possible use ports in other states or in Vancouver;
2. Terminate agreements with and stop using port drayage drivers hired by motor carriers listed on the California Division of Labor Standards Enforcement (DLSE) website for unsatisfied final court judgments, tax assessments or tax liens. Liability begins once a motor carrier is listed on the site.
3. In agreements covering port drayage services, contractually (a) prohibit subcontracting and require that all such services be provided by the motor carrier’s employees, (b) require compliance with all applicable laws including laws pertaining to employment compensation, benefits and workers’ compensation; (c) require certificates of insurance evidencing that the motor carrier has obtained workers’ compensation insurance for all employees; (d) require that the motor carrier immediately share any notices it receives from the DLSE, as notice is to be given to the motor carrier before it is included on the DLSE website; (e) require to the fullest extent permitted by law that the motor carrier indemnify you for any liabilities, judgments, costs and expenses (including attorneys’ fees) arising from its or any of its subcontractor’s payment or non-payment of wages, benefits, taxes, workers compensation premiums and or any costs associated with a misclassification claim or demand; and (f) require prior notification and disclosure of all motor carriers used to provide port drayage services before any such services are engaged.
4. Set up a process to monthly check the DLSE website to assure motor carriers with you engage for services are not included on the lists pertaining to unsatisfied final court judgments, tax assessments, or tax liens. The site is to be updated on the 5th of each month, so regular attempts to review the site are important.

As of this date there are no regulations to add greater detail to the requirements and process for compliance. We anticipate rapid development of the regulations and the DLSE website. Please feel free to contact us for additional information and updates.

Angela has practiced in a broad range of areas including employment law, labor law, legislative, general business, business litigation, premise liability defense, real estate litigation, liquor regulation, corporate, commercial transactions, cargo, and commercial real estate. Recognized by attorneys across the country as practicing with the highest possible rating in both legal ability and ethical standards, Angela has been awarded the Martindale-Hubbell® AV preeminent™ Award since 2010.

Angela graduated from Capital University Law School in 1988. She earned her undergraduate degree in Nursing and Health from the University of Cincinnati. She is licensed in all Ohio courts, U.S. District Court for the Southern District of Ohio, and the U.S. Court of Appeals, Sixth Circuit. Read more