Plaintiff’s Activities Not Subject to Protection Under Labor Law §241(6)

In an action to recover damages for personal injuries, the plaintiff filed an Appeal from a Judgment of the Supreme Court, Westchester County, dated March 28, 2019. The Judgment was granted following entry of an Order, which granted the defendants' Motion for Summary Judgment dismissing the cause of action as to the alleged violation of Labor Law §241(6), granting the defendants' Motion for Summary Judgment, and against the plaintiff, dismissing that cause of action.

The plaintiff was employed by non-party, Skanska E.C.C.O. III, a general contractor hired by the defendant Metro-North Railroad for the Harmon Shop Replacement Project (hereinafter “the project”). The project involved the construction of two two-story buildings. On August 19, 2016, the plaintiff was working on the premises of the subject project location, performing welding work on one of the partially completed buildings. On that date, the plaintiff used an aerial lift to ascend to the second floor of the building and perform work on the roof. The plaintiff finished his work for the day at 3:00 p.m., descended to the ground floor, and put away his equipment. After realizing that he left his car keys on the second floor of the building, the plaintiff used the aerial lift to ascend to the second floor, retrieved his keys, and got back into the lift. However, when the plaintiff attempted to use the lift to descend to the ground floor, the lift "release[d]" and the plaintiff's head "slammed" into the railing of the lift's basket, which caused plaintiff to allegedly sustain injuries as a result thereof.

Thereafter, in February 2017, the plaintiff commenced an action to recover damages for personal injuries against the defendants, alleging, inter alia, a violation of Labor Law §241(6). In August 2018, the defendants moved for summary judgment dismissing the complaint, and the plaintiff opposed the defendants' motion.  In an order dated January 15, 2019, the Supreme Court, among other things, granted that branch of the defendants' Motion for Summary Judgment dismissing the Labor Law §241(6) cause of action. The court subsequently issued a Judgment dated March 28, 2019, in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff Appealed the Court’s Judgment as it relates to the dismissed cause of action under Labor Law §241(6).

On Appeal, the Appellate Division, in the Second Judicial Department, affirmed the Supreme Court’s Judgment, holding that the defendants established, prima facie, that the plaintiff was not engaged in any of [*2] the enumerated activities protected by Labor Law §241(6) at the time of his accident because the defendants presented competent evidence that the subject accident occurred after the plaintiff and his coworker had completed the entirety of their work for the day (see Feinberg v Sanz, 115 AD3d 705, 706; Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 753; see also Robinson v National Grid Energy Mgt., LLC, 150 AD3d 910, 913; Ferenczi v Port Auth. of N.Y. & N.J., 34 AD3d 722). Moreover, plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Therefore, the Supreme Court properly granted that branch of the defendants' Motion for Summary Judgment dismissing the Labor Law § 241(6) cause of action.

The Best Affirmative Defense for Summary Judgement, is a Strong Offense

The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, recently addressed the burden of proof a plaintiff must show for a Motion for Summary Judgment on the issue of liability and to dismiss a defendant’s affirmative defenses that allege plaintiff’s comparative negligence or plaintiff’s liability. See Joann Sapienza v. Rebecca Harrison, ___ A.D.3d ___, 2021 N.Y. Slip Op. 08210 (2d Dept. 2021). Simply, if a defendant merely argues that a plaintiff’s Motion for Summary Judgment is “premature” without raising triable issues of fact, the court will likely grant a plaintiff’s Motion. 

In Sapienza, the plaintiff allegedly sustained personal injuries in a motor vehicle accident that occurred in Brooklyn, New York, when the defendant’s vehicle struck plaintiff’s vehicle.  Prior to depositions, the plaintiff moved for Summary Judgment on the issue of liability and to dismiss the defendant’s affirmative defenses relating to the plaintiff’s liability and plaintiff’s comparative negligence. 

Plaintiff’s Motion for Summary Judgment contended that the defendant failed to yield the right of way when turning left (see N.Y.C. Vehicle & Traffic Law, §1141) and was the sole proximate cause of the accident which caused the plaintiff to sustain personal injuries.  In support of plaintiff’s Motion for Summary Judgment, plaintiff submitted an affidavit indicating that the intersection’s traffic light was in her favor when the defendant’s vehicle failed to signal and, without warning, made a left-hand turn directly in front of plaintiff’s vehicle. Further, the plaintiff’s affidavit established that she had no comparative fault or liability for the subject accident. The defendant’s opposition neither included an affidavit disputing plaintiff’s affidavit nor raised any issues of triable fact; the opposition merely stated that the plaintiff’s Motion for Summary Judgment was premature and should be denied.

The Trial Court denied the plaintiff’s Motion for Summary Judgment as “premature” for which the plaintiff appealed.  Ultimately, the Second Judicial Department reversed the Trial Court’s order and granted the plaintiff’s Motion for Summary Judgment on the issue of liability and to dismiss defendant’s affirmative defenses for plaintiff’s liability and comparative negligence.

The Second Judicial Department found that plaintiff’s undisputed affidavit established her entitlement to Summary Judgment on the issue of liability as the affidavit detailed the defendant’s violation of the applicable traffic laws and that defendant was the sole proximate cause of the accident.  Additionally, the Court found that defendant’s contentions that this Motion was premature failed “to demonstrate that discovery might lead to relevant evidence or [failed to indicate] that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.”  Further, the Court held that “the mere hope or speculation that evidence may be uncovered during the discovery process is insufficient to deny the motion.” 

From a defense perspective, Sapienza teaches us that simply opposing a Motion for Summary Judgment on the issue of liability by claiming its “premature” without any support of triable issues of fact, even if significant discovery is outstanding, will not be enough to defeat the motion.  Sapienza also shows the importance of obtaining an affidavit of a defendant tortfeasor to rebut the accident dynamics submitted in a plaintiff’s affidavit.  Further, the defendant’s affidavit will assist in maintaining a defendant’s affirmative defenses on a plaintiff’s liability and comparative negligence.  Therefore, the best affirmative defense to defeat a plaintiff’s premature Motion for Summary Judgment on liability, is a strong offensive approach in rebutting plaintiff’s view as to the accident dynamics and the potential liability for the accident.

Combating Insurance Fraud in Florida

Property insurance fraud and abusive practices have set the cost of homeowner’s insurance rates in Florida on a skyward trajectory over the past few years. This is due to an increasing number of lawyers, contractors, and unlicensed claims adjusters posing as insurance specialists and targeting homeowners who suffer damages in an effort to get them to execute an assignment of benefits. Once the assignment of benefits is executed, inflated claims are filed to the insurer. If the insurer pays the inflated claim, it contributes to higher rates for all policyholders. If the insurer does not pay, it gets caught up in costly litigation, which also contributes to higher rates. According to the Insurance Information Institute, 45,000 lawsuits were filed in Florida against insurers in 2018. That number doubled to 92,000 in 2019, more than tripled to 150,000 in 2020, and is projected to surpass 200,000 in 2021. As a result, insurers are requesting legislative intervention to avoid bankruptcy. Moreover, fewer carriers are writing new policies in Florida.

In response, the Florida Senate Banking and Insurance Committee approved bill SB 76 (2021). The bill mandates that policies adjust roof claims according to a roof surface reimbursement schedule. As per the schedule, insurers will: (1) provide reimbursement for repair, replacement, and installation based on the annual age of a roof surface type; (2) provide full replacement coverage for any roof surface type less than 10 years old; and (3) unless otherwise demonstrated to the office to be actuarially justified, provide for reimbursement amounts of no less than:

a. Seventy percent for a metal roof type.

b. Forty percent for a concrete tile and clay tile roof type.

c. Forty percent for a wood shake and wood shingle roof type.

d. Twenty-five percent for all other roof types.

 This section is meant to discourage, and limit, inflated claims after hurricane damage. In addition, the bill provides that there is a strong presumption that a lodestar fee is sufficient and reasonable when awarding attorney fees for a claim arising under a property insurance policy. Under the loadstar method, attorney fees are calculated using the number of hours reasonably expended on the matter multiplied by a reasonable hourly rate. Currently, trial courts adjust the lodestar amount for property claims by applying a multiplier from 1.5 to 3.0 based on the likelihood of success at the outset of the case. The fee multiplier was meant to encourage attorneys to represent homeowners with relatively low resources on a contingency fee basis. However, the bill proposes a stark departure from the multiplier method in order to put an end to abusive practices and protracted litigation. The bill also proposes to change the amount of time policyholders have to file a claim after damages from three years to two years. Additionally, it will require policyholders to provide notice to insurers at least 60 days before filing lawsuits. 

The bill is drawing support from insurance companies and strong opposition by plaintiffs’ attorneys. As a result, we expect to see a lobbying war during the legislative session that will start on March 2, 2021. Regardless of the outcome of the bill one thing is clear, insurance reform is a priority for the 2021 legislative session in Florida.

Callahan & Fusco will continue to monitor the progress of this proposed legislation. 

C&F Obtains Summary Judgement in Slip and Fall Action

In a recent decision, C&F obtained summary judgment in the New Jersey Superior Court, Bergen County, in a slip and fall action, in which we represented the defendant, snowplow contractor. In the Complaint, plaintiff alleged that she was caused to slip on ice that accumulated in the parking lot of the subject premises and that the defendants negligently failed to maintain the premises in a safe manner. The premises were owned and managed by the co-defendants, who filed a motion for summary judgment. In response, we filed a cross-motion for summary judgment.

Pursuant to the contract with the property owner, the insured was responsible for providing snow plowing, shoveling, and calcium application services for the parking lot of the subject premises.  The contract, though, explicitly disclaimed responsibility for any slippery conditions caused by a melt and/or refreeze. Additional services, such as an ice watch or further salt applications after a storm, were not contemplated by the snow plowing contract. The contract specifically stated that the insured is not responsible for conditions caused by melt and refreeze occurrences.

In New Jersey, a landowner has a non-delegable duty to exercise reasonable care for an invitee's safety.  De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261 (App. Div. 1986), including making reasonable inspections of its property and taking such steps as are necessary to correct or to give warning of hazardous conditions or defects which are actually known to the landowner.  The landowner is also liable to an invitee for failing to correct or warn of defects that, by the exercise of reasonable care, could or should have been discovered.  Monaco v. Hartz Mountain Corporation, 178 N.J. 401, 414-15 (2004).

Moreover, in instances where a commercial property owner has contracted another entity to perform snow removal activities, the snow removal company has a duty to perform said snow removal “in a careful and prudent manner.” Gonzalez v. Eastern Freightways, 2010 N.J. Super. Unpub. LEXIS 2338 (App.Div. Sept. 23, 2010).  The duties of the snow removal contractor are, however, defined by the terms of the contract.  Aronsohn v. Mandara, 98 N.J. 92, 105-06, 484 A.2d 675 (1984), (holding that the snow contractor’s duty extended only so far as permitted by the contract).

In our cross-motion for summary judgment, we argued that there was no duty owed to the plaintiff because there was no evidence that the insured was called by co-defendants to provide any additional snow management services outside of those contemplated by the snow plowing contract at or around the time of the subject accident. Furthermore, we argued that plaintiff testified that there was no precipitation on the date of the subject accident, and that she did not see any snow in the parking lot, prior to the time of the accident. Accordingly, in the absence of any storm to trigger the insured’s contractual snow management obligations or any evidence suggesting that it was contacted to provide any snow management services outside of the scope of the snow plowing contract, our insured did not owe any duty of care to plaintiff.

During oral argument, the Court agreed with our position and granted our cross-motion for summary judgment.

Personal Injury Complaint for Discovery Survives Death in Massachusetts

Recently, in Atchue v. Benchmark Senior Living LLC, 98 Mass. App. Ct. 572 (2020), the Appellate Court considered whether the Survival Statute M.G.L.c. 228 § 1(2)(a), encompasses a complaint for discovery involving personal injuries sustained by a deceased plaintiff.

On December 19, 2015, Mary T. Atchue sustained a broken foot and contusions while under the care of an assisted living facility known as Tatnuck Park in Worcester, Massachusetts. Mrs. Atchue’s family repeatedly requested records and reports concerning the incident, however, Tatnuck Park failed to produce the requested records. Subsequently, Mrs. Atchue’s attorney served a complaint for discovery and a M.G.L.c. 93A demand letter which alleged Tatnuck Park or its agents negligently failed to abide their own care plan, which required Mrs. Atchue to be transported using a gait belt. Tatnuck Park denied any liability and alleged the plaintiff’s legs “gave out” and she fell to the ground. Additionally, they denied their care plan required gait belts when they transported Mrs. Atchue. In the complaint for discovery, Mrs. Atchue stated “she ‘believes that she has a viable claim for negligence against [the defendants …] but that she requires the information contained in the incident report […] to assess the viability of her claim.’” At the time of the incident, Mrs. Atchue was elderly and displayed cognitive deficiencies which lead to inferences she may not have been able to identify the individuals involved or specific negligent acts that caused her injuries. In June of 2018, Mrs. Atchue’s complaint for discovery was filed with the trial court and subsequently dismissed. In December of 2018 she filed an appeal. Following the appeal, Mrs. Atchue passed away. The Appellate Court, however, took the matter under review.

On appeal, the defendants argued the matter was moot because Mrs. Atchue had passed away. The Court noted, “litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome and where the court cannot order any further effective relief.” At common law, tort actions did not survive a party’s death, however, the Legislature enacted the Survival Statute M.G.L.c. 228 § 1(2)(a) to include tort actions to common law contract claims. M.G.L.c. 228 § 1(2)(a) provides, “[i]n addition to the actions which survive by the common law, the following shall survive: (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person.” The defendant’s countered by suggesting the plaintiff’s complaint for discovery is neither a contract nor a tort claim to survive death under M.G.L.c. 228 § 1(2)(a). The Court disagreed stating, “the defendants' argument overlooks the fact that a complaint for discovery is an equitable remedy in aid of an action at law. We discern no reason why, where the administrator of an estate has the ability to pursue an action at law on behalf of a decedent, the administrator of the estate would not have the same ability as the decedent to obtain prelawsuit discovery through a complaint for discovery.” Further, the Court looked to the plain language of M.G.L.c. 228 § 1(2)(a), specifically, “or other damage to the person” and held that this phrase was intended to incorporate other torts that involve damages. Ultimately, the Court found that “because Atchue's potential negligence claim survives her death, so too does her complaint for discovery.”

From a defense perspective, at common law, death no longer defeats a personal injury suit or even pre-suit inquiries of discovery, therefore compliance with such requests are required, unless there are independent grounds to object.

A Wet Surface does not Inherently Create a Dangerous Condition

The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, recently addressed the question of whether the landing to enter a building—in this instance a restaurant—can constitute a dangerous condition if a plaintiff slips and falls when it is raining at the time of the accident.  See Christopher Derosa v. Zaliv, LLC, ___ A.D.3d ___, 2020 N.Y. Slip. Op. 07862 (2d Dept. 2020).  Simply, if the only alleged cause for the fall presented by a plaintiff was a slippery condition upon the entrance to a building caused by falling precipitation, the existence of dangerous condition cannot be established. 

In Derosa, the plaintiff allegedly sustained personal injuries when he was lawfully upon the premises of a TGI Friday’s restaurant in Brooklyn, New York, operated by the defendants.  The subject accident occurred when the plaintiff slipped on the landing of an exterior staircase leading to the entrance of the restaurant, allegedly from the negligent ownership and maintenance of the staircase on the premises.

The defendants moved for Summary Judgment, arguing that the plaintiff failed to identify a dangerous condition upon the premises occupied by the defendants thereby causing his sustained injuries; however, the trial court denied the defendants’ Motions for Summary Judgment finding that questions of fact as to the dangerous condition remained.  Ultimately, the Second Judicial Department reversed the trial court’s order and granted the defendants’ Motions for Summary Judgement, dismissing plaintiff’s claims against the defendants.

The Second Judicial Department found that “the mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition.”  The Court found that defendants properly established that the sole cause of plaintiff’s fall was the ongoing precipitation that made the subject staircase at the entrance wet.  Additionally, plaintiff admitted during his deposition that the rain, which was still falling at the time of his accident, caused the area where he fell to become wet; specifically, the rain caused the surface of the stairway to become wet, which led him to slip and sustain his injuries.  The Second Judicial Department also rejected plaintiff’s attempt to create an issue of fact through his engineering expert; the report failed to alter the cause of plaintiff’s fall—the rain—based upon the plaintiff’s candid deposition testimony.

From a defense perspective, Derosa teaches us that where weather may factor into a plaintiff’s injuries it is important to evaluate whether the weather is the sole cause of the alleged injury or just another contributing factor to the accident dynamic.  When it is the sole cause, given the holding in Derosa, it should be argued that a wet surface from rain does not create a dangerous condition in and of itself.  As the ongoing rain was neither created nor caused by the defendants in Derosa, a court cannot have reasonably deduced that a dangerous condition existed; simply put, a plaintiff who slips and falls from the rain alone has insufficient evidence to maintain a premises liability action.  Therefore, there is a strong likelihood of defendants, in similar matters, being successful with a Motion for Summary Judgment.