Permalink Arthur Xanthos, carriers, claims professionals, construction law, Court of Appeals, Gartner + Bloom, general contractors, labor law, ladder, negligence, O'Brien v. Port Authority, slip and fall
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.
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’Brien
case, 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.
counsels the courts against making that presumption.
Mold Up in the Air: Settled, by Arthur Xanthos Permalink
Our January 16, 2014 entry entitled “Mold Up in the Air” discussed the pending appeal of Cornell v. 350 West 51st St. Realty LLC, a case which concerned whether a plaintiff could get to a jury on her claim that indoor residential mold caused her respiratory injuries. We pointed out that the Court of Appeal’s questioning at oral argument portended a potential reversal and defeat for mold plaintiffs. And that is in fact what has happened. The Court of Appeals (2014 NY Slip Op 02096) granted the defendant landlord and coop summary judgment, and dismissed the bodily injury claims of the Cornell plaintiff. The decision is a difficult read, but the lessons yielded are clear. Arthur Xanthos, causation, co-op and condo, condominiums, Cornell v. 360 W. 51st Realty, Court of Appeals, Fraser, Frye, lawsuit, mold, mold litigation, personal injury, premises liability, tenant, toxic tort
Some background: the plaintiff in Cornell alleged that throughout her occupancy of a co-op apartment, the co-op building's "basement was in a wet, damp, musty condition"; that the radiator in her apartment's living room "leaked on numerous occasions" and "continued to leak and also released steam into the Apartment" despite the co-op’s attempts at repair; that in July 2003 she first noticed and notified the co-op that "there was mold growing in the [apartment's] bathroom," but the co-op "ignored" this condition; and that beginning in the first week of October, 2003, the landlord and/or its contractor performed demolition and/or construction work in the basement of the co-op building, permitting noxious dust, dirt, mold and debris to be released, which infiltrated her first-floor apartment. What were her injuries? The Cornell plaintiff claimed that "[i]mmediately after" the landlord and/or its contractor performed the work in the basement, she became dizzy, disoriented, covered with rashes, unable to breathe, light-headed, congested, experienced tightness in her chest, had severe headaches, had shortness of breath, had a metallic taste in her mouth, and experienced other physical symptoms.
At the Frye hearing (brought on by defense motion), the defendants used an immunologist/epidemiologist who assessed plaintiff’s claim that "a significant portion of her physical and psychological problems is related to adverse reactions stemming from exposures to molds," and, after review of her medical records and the relevant science, opined with reasonable medical certainty that there was no relationship between the medical problems experienced by Ms. Cornell and exposures to molds (i.e., no specific causation). The defendants’ expert also opined that a causal relationship between indoor residential mold and Ms. Cornell’s injuries was not generally accepted in the medical community (i.e., no general causation).
Plaintiff’s medical expert opined to the contrary, and pointed to numerous studies that supported an association between indoor residential mold and illness. But as the Court of Appeals explained, “studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff's medical expert] attributes to Cornell's exposure to mold (bronchial-asthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects.” (The causation/association battle line was explained in detail in our January 16 entry.)
The Court of Appeals could have ended its decision there (since without proof of general causation, plaintiff must be turned away), but it went further: even assuming that the plaintiff in Cornell demonstrated general causation, she did not show the necessary specific causation. (For a theory of causation to survive under Frye, both prongs of causation – general and specific – must be proved.) The Court of Appeals decision alludes to the fact plaintiff failed to show specific causation because she did not set forth “exposure to a toxin, that the toxin is capable of causing the particular illness and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." The Cornell plaintiff’s expert had tried to prove specific causation by differential diagnosis. The Court of Appeals dismissed that attempt: “Differential diagnosis, of course, 'assumes general causation has been proven'". This last pronouncement is of incredible importance to the defense of toxic tort claims, as the number of clinicians who use differential diagnosis to support an opinion on causation is legion.
This Firm already has had opportunity to use the Cornell decision at the trial court level to our client’s advantage (see Benton v 80 Cranberry Street, in “Publications” above). Absent a major change in the science of mold illness, there is every reason to believe the next few years will see many more summary judgment decisions in favor of land owners and against mold plaintiffs.
Mold Up in the Air, by Arthur Xanthos Permalink
Arthur Xanthos, causation, Cornell v. 360 W. 51st Realty, Court of Appeals, Fraser, Frye, mold, mold litigation, negligence, premises liability, tenant, toxic tort, warranty of habitability
On January 13, 2014, the New York State Court of Appeals heard oral argument in the appeal of Cornell v. 360 W. 51st Realty, which is the latest First Department word on whether and when a claim alleging bodily injury due to mold can survive for presentment to a jury.
Cornell was decided by the First Department on March 6, 2012, and is generally regarded to have made it easier for a plaintiff’s mold claim to survive summary judgment under a Frye analysis. (Fryerequires that for a plaintiff’s claim to survive, it must be generally accepted in the relevant scientific community that the offending agent (mold, asbestos, etc.) causes the claimed injury.)
A decision is likely months away but if the questions from the Court of Appeals bench during oral argument are any indication, Cornell stands an excellent chance of reversal or modification.
The Justices focused primarily on the difference between the word “causation”, and the term “association”. While science recognizes many associations, it recognizes far fewer causations -- and that is the entire point of Frye. If the relevant scientific community does not generally accept that A (e.g., mold) causes B (e.g., asthma), then plaintiff cannot prove causation and must be turned away. The Cornell plaintiff showed “association” between mold and illness; will that be enough for plaintiff’s case to survive for presentment to a jury?
About two years ago, this firm handled a Frye hearing in Supreme Court, Kings County in which the sitting Justice presciently asked the same question the Court of Appeals just did -- what is the difference between causation and association? In other words, do scientists (doctors) use “association” to mean the same thing that a layperson means by “causation”? This question gets at the very root of the confusion in some of the case law on whether to allow expert testimony under Frye.
Hypotheticals, some absurd, highlight the issue. There may be a strong association between men with grey hair, and mortality; or between membership in a sailing club, and sunburn; or between those who make appointments with Dr. Smith, and sickness. But it would never be argued seriously that the former causes the latter. That, in a nutshell, is why New York requires proof that causation is generally accepted in the relevant scientific community.
So Cornellwill likely turn on whether the Court of Appeals views causation and association as starkly different as these examples illustrate, or whether it accepts the more highbrow argument that causation and association are the same thing, differing only in the degree of experimental proof available for each.
- APX 1/16/14