site stats

Firm News

 Permalink
SLIPPERY STAIRS AND THE LABOR LAW: NEW GUIDANCE, 

By Arthur P. Xanthos

Defense counsel and carriers should be aware of the recent Court of Appeals pronouncement on Labor Law 240(1) cases, particularly because this latest pronouncement provides a roadmap for defeating plaintiffs’ common stratagem – the summary judgment motion.

The decision is O'Brien v Port Auth. of N.Y. & N.J., 2017 N.Y. LEXIS 725, 2017 NY Slip Op 02466 (N.Y. Mar. 30, 2017) The facts have been seen many times:  Plaintiff working on construction site, while descending an exterior temporary scaffold staircase which was wet and slippery due to rain, slips and falls thereby injuring himself.  Plaintiff sues all relevant parties and the focus of the complaint is Labor Law 240(1).

Plaintiff made the traditional summary judgment motion, supported by an expert affidavit from a professional engineer who opined that the stairs were "not in compliance with good and accepted standards of construction site safety and practice", that slippery conditions on stairways should be eliminated before use, and that the stairs in question were smaller, narrower, more worn, and steeper than typical stairs.  The expert concluded that these conditions coupled with the fact that the stairs were wet due to rain created a dangerous condition that was not in compliance with good and accepted standards of construction site safety and created a significant risk of slipping on the stairs and of thus falling down the stairs.
In opposition, defendants submitted affidavits from a construction safety expert, who disagreed with plaintiff’s expert, and opined that the staircase was designed for both indoor and outdoor use and provided traction acceptable within industry standards and practice in times of inclement weather. He further disagreed that the steps were too narrow, or that the step treads had been worn down.  He noted that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction.  He concluded that these anti-slip measures were sufficient. The defendants’ expert also opined that the use of both handrails could have helped prevent plaintiff's fall.
Not surprisingly, the lower court and the appellate division ruled in favor of the plaintiff on the motion.  The Court of Appeals, however, reversed plaintiff’s summary judgment award.  The Court’s primary rationale was the following:  the mere fact a plaintiff falls from a height on a construction site does not give rise to automatic Labor Law 240(1) liability, and where the defendants raise questions of fact as to whether a safety device (in the O’Briencase, the staircase) provided adequate protection to the plaintiff, summary judgment is not warranted.

While this decision and rationale is not a technical rewrite of Labor Law 240(1), it does mark a sea change in what presumptions the lower courts should make in analyzing these motions.  Heretofore, the process with some exceptions has been maddeningly difficult for the defense, because once a court heard that a plaintiff had fallen from a height and was injured, the court presumed – regardless of contradicting expert affidavits -- that inadequate safety devices were in place.  In other words, courts have been utilizing the fact of the fall to impose automatic liability. 

O’Brien counsels the courts against making that presumption.

                                                     -APX 5/26/17



 Comments

Categories

 241(6)
 acquisitions
 adjusters
 ADR
 Alexander D. Fisher
 Alex Fisher
 Alissa Mendys
 alternative dispute resolution
 Anne Armstrong
 Appellate Division
 arbitration
 Arthur Xanthos
 attorneys
 attorneys fees
 audit
 automatic orders
 autonomous vehicle
 BCL 624
 board of directors
 bodily injury
 Bronx
 Brown v. Blennerhasset
 buildings
 business law
 business litigation
 carriers
 causation
 charity
 choice of law
 Christine Messina
 claims professionals
 closely held corporation
 co-op and condo
 co-ops and condo
 condominiums
 construction defect
 construction law
 contract drafting
 contract law
 contracts
 cooling tower
 Cornell v. 360 W. 51st Realty
 corporate mismanagement
 corporate records
 corporate veil
 corporations
 Court of Appeals
 crane collapse
 damages
 discovery
 dismissal
 divorce
 drafting
 due diligence
 equitable distribution
 Estates
 excessive
 expert preclusion
 Flintlock
 Fraser
 Frye
 Gartner + Bloom
 general contractors
 general partnerships
 GP
 Hudson Pointe Condominium Association
 HVAC
 indemnification
 indemnity
 indemnity provision
 inspection
 insurance
 insurers
 Jacqueline A. Muttick
 Jeff Miragliotta
 Jeffrey Johnson
 Joseph Rapice
 jury award
 Ken Bloom
 labor law
 ladder
 landlord
 lawsuit
 lawyers
 lease
 legal fees
 legionella
 legionnaires disease
 liability
 life insurance
 limited liability companies
 limited liability company
 limited liability partnerships
 limited partnerships
 litigation
 LLP
 LP
 Malouf v. Equinox Holdings
 Marc Shortino
 Medieval Festival
 Michael E. Kar
 Michael Kar
 mold
 mold litigation
 Motion Practice
 negligence
 New Jersey
 New Jersey Supreme Court
 noise complaints
 O'Brien v. Port Authority
 operating agreement
 partnerships
 personal injury
 preclusion
 premises liability
 proprietary lease
 punitive damages
 real estate
 risk management
 risk management meetings
 Roy Anderson
 sanctions
 Savel
 secondhand smoke
 Sessa v. Sessa
 shareholders
 shareholders agreement
 slip and fall
 spoliation
 statute of limitations
 statute of repose
 Stuart Gartner
 summary judgment
 SuperLawyers
 Susan Mahon
 tax partnership representative
 tenant
 tenants
 Theodoli
 The Palisades at Fort Lee Conndominium
 toxic tort
 Trusts
 Vera Tsai
 warranty of habitability
 Washington Heights
 water tower
 WHIDC
 Wills
 winter wishes

Archives

New York
801 Second Avenue,
11th Floor
New York, NY 10017
Phone: (212) 759-5800

New Jersey
110 South Jefferson Road,
Suite 300
Whippany, NJ 07981
Phone: (973) 921-0300

Follow Us