Labor Law Issue

Vol. 14 No. 2 Winter 2014 The Labor Law Issue Does a Coupling Qualify as a “Safety Device” President’s under the Labor Column Law? Brian rayhill* JOhn J. MCDOnOugh, ESq. * & ryan T. KEarnEy ** i am honored to preside as President of the Defense in a recent decision, new york’s high court provided association of new york for our 2013-2014 term. The much needed clarification on the classification of DEFEnDanT journal is one of the outstanding benefits certain objects as “safety devices” under labor law of DANY membership. it is with great pleasure and § 240(1). Fabrizi v. 1095 Avenue of the Americas, LLC, et pride that the officers and directors of DANY deliver to al., 2014 n.y. Slip Op 01206 (Feb. 20, 2014). Frequent you this unprecedented issue of The DEFEnDanT. This readers of The Defendant are all too familiar with this dedicated labor law issue of over 80 pages is both statute, new york’s well-known scaffolding law which authoritative and timely and we know it will be a strong imposes “absolute liability” for special hazards related resource for our DANY members. We are grateful to to elevation concerns in the construction industry. the authors and to our Publications Committee for their time, effort and vision in bringing about this One class of cases that is covered by Section 240 comprehensive publication. Special appreciation also is the so-called “falling object” case, which renders goes to DANY director Bradley Corsair who oversaw owners and general contractors liable for injuries and coordinated this special issue. caused by the failure to provide an adequate safety device to prevent the falling of objects from a height. DANY’s mission remains strong. DANY brings in addition to certain enumerated safety devices under together by association, communication, and § 240(1), the statute also covers “other devices which organization, attorneys and qualified non attorneys in the state of new york who devote substantial shall be so constructed, placed and operated as to professional time to the handling of litigated cases give proper protection to a person so employed.” it is primarily for the defense. DANY is committed here where plaintiffs attempt to exploit the statute’s to improving the services of the legal profession, ambiguity by expanding the definition of “safety elevating the standard of trial practice, supporting and device” to include all sorts of instrumentalities typically working for the improvement of the adversarial system found at a construction site, in order to obtain the of jurisprudence in our courts, and facilitating and windfall of absolute liability under Section 240. expediting trial of disputed claims. in Fabrizi, the plaintiff alleged that he was injured DANY has a long and proud history of presenting when 60-80 pounds of galvanized steel conduit that ClE programs, networking events. mentoring young was left dangling from an overhead compression lawyers and recognizing the Judiciary and other leaders coupling fell and struck him on the hand. in support at our annual award ceremonies. DANY is privileged to of his claim under Section 240, plaintiff argued that have distinguished and dynamic officers and directors the defendants’ failure to use a more secure “set screw who focus on maximizing member benefits, delivering coupling” constituted a failure to provide a proper quality legal programs and recognition. DANY safety device to adequately protect the plaintiff, which members are fortunate to have regular access to the proximately caused his injuries. all parties moved for directors and officers. Much of DANY’s good work is summary judgment. The Supreme Court, new york completed within our active committees. Our officers, County granted the plaintiff’s motion, holding that the directors and past presidents all serve in important conduit was not properly secured to provide plaintiff capacities and are responsible for DANY’s committee projects which include our nationally recognized Continued on page 2 amicus Committee led by Chair andy Zajac; our ClE * John J. McDonough is the Vice Chairman of Cozen O’Connor’s Continued on page 8 Commercial Litigation Department. ** Ryan T. Kearney is an associate in the department, and both practice out * Brian Rayhill, Managing Attorney Epstein Gialleonardo & Rayhill. of the firm’s New York office. Winter 2014 1 The Defense Association of New York Does a Coupling Qualify as a “Safety Device” under the Labor Law? Continued from page 1 adequate protection. On appeal, the First Department modified the order, holding that the defendants’ Table of Contents failure to provide the alternative coupling was not the proximate cause of plaintiff’s incident, but otherwise affirmed the denial of defendants’ motion. FEATURES a split Court of appeals reversed, holding that the defendants had established as a matter of law President’s Column ................................................................................... 1 that the injury was not caused by “the absence or by Brian rayhill inadequacy of an enumerated safety device.” Writing Does a Coupling qualify as a “Safety Device” under the for the majority, Judge Pigott explicitly rejected the labor law? ................................................................................................... 1 plaintiff’s argument that the coupling qualified as a by John J. McDonough, Esq. & ryan T. Kearney safety device “constructed, placed, and operated as to What Scaffold? The application of labor law 240 to weight give protection from the falling conduit.” instead, the rather than height in the wake of Runner and Wilinski .............. 4 by adrienne yaron coupling only served to provide support to the overhead conduit assembly, and both compression coupling and labor law Section 240(1) The Fundamentals ................................ 9 by Steven r. Dyki, Esq. & alan S. russo, Esq. “set screw coupling” would have sufficiently served this purpose. Thus, the Court rejected the plaintiff’s ThE hOMEOWnEr’S EXEMPTiOn TO laBOr laW CaSES: argument to the contrary, classifying it as an attempt how Much homeowner involvement is Too Much? .................16 by Paul Zola & Vincent P. Pozzuto to extend “the reach of section 240(1) beyond its intended purpose to any component that may lend Who are labor law Section 240(1) defendants and plaintiffs? ...........................................................................................20 support to a structure.” by Mike Cordrey in a dissenting opinion, Chief Judge lippman The Butterfly Effect and labor law § 240 Causation .................30 argued that the dispositive inquiry should not be by Julian D. Ehrlich “whether couplings can be characterized as safety understanding The recalcitrant Worker Defense .......................32 devices” but rather “whether plaintiff’s injuries by Christopher renzulli & nicholas Whipple were the direct consequence of a failure to provide use of Experts to Defend a labor law § 240(1) Claim ..............35 adequate protection against a risk arising from a by David Persky & Bradley J. Corsair physically significant elevation differential.” The dissent What Exactly is a Falling Object, anyway? ....................................43 then criticized the majority as losing focus on the by andrew Zajac & James K. O’Sullivan defendant’s burden to show a “deficient causal nexus liability for Collapsing Walls and Structures under labor between the failure to provide a safety device and law §240(1) ...............................................................................................48 plaintiff’s injury” by “focusing myopically on whether by leon r. Kowalski couplings fall under the statute.” Moreover, Chief labor law §240 and the Falling Worker – recent Decisions ..60 Judge lippman argued that the coupling, as a tool by Marc J. ackerman necessary to stabilize the conduit pipe, was “precisely What is an Elevation-related risk in The Wake Of runner? ...63 the sort of device contemplated by section 240(1),” and by gary h. abelson & Sanjeev Devabhakthuni therefore could support liability under this statute in What activity Constitutes an “alteration” under labor law any event. § 240(1)? .....................................................................................................66 given the split nature of the decision, this is an by nicholas M. Cardascia, Esq. & Ourania Sdogos issue that may be revisited in subsequent cases before ClEan BrEaK: a retreat From Virtually unlimited liability the Court of appeals. however, for the time being, under The labor law .............................................................................75 defense counsel must employ this decision as a basis to by ross P. Masler defeat plaintiffs’ attempts to qualify non-enumerated all Chuppahs are not Created Equal under The labor law: a instrumentalities as “safety devices” sufficient to plead look into What Constitutes a Building Or a Structure For The Purpose Of labor law § 240(1) ..........................................................81 claims under labor law § 240(1). by Catherine r. Everett Winter 2014 2 The Defense Association of New York What Scaffold? The application of Labor Law 240 to weight rather than height in the wake of Runner and Wilinski AdriEnnE yarOn* To the layperson, the idea behind new york’s labor law § 240(1) cause of action “because the so-called “Scaffold law” begins and ends with lewis injury he sustained when a component of the air hine’s iconic photographs of the Empire State Building conditioner he was dismantling fell

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