Injured Kids May Not Be Bound By Waivers

I have had many clients whose children were injured but who thought they could not sue because they had signed a waiver.  Fortunately, those clients thought to check with an attorney.  I can only imagine how many people have been dissuaded from filing a lawsuit, or contacting a lawyer, because they signed a waiver that would never hold up in court.

The truth is, when dealing with children, waivers are generally not enforceable.  A small child does not have the capacity to understand or waive their rights, and their parents cannot waive them on their behalf.  

This does not mean that every case is a winner.  Certain activities, particularly sports, carry with them an assumption of risk.  For example, generally, no one is liable when a teenager is hurt getting tackled in football because it is a risk of the activity, and no one was negligent.  

Other activities, particularly when marketed to young children, are not the same as organized sports among older children.  Facilities engaged in laser tag, ice skating, roller skating, trampoline and bounce parks, go carting, and other activities - even when they have you sign a waiver - owe a duty of reasonable care, including appropriate warnings, supervision, crowd control, and keeping their facilities safe. 

Don't assume that because you signed a waiver your child has no rights if they are injured. Call me for a free consultation, 631-482-9700, or email Skreppein@Qhmlaw.com.

 

Snow and Ice Injuries

We've had a few short snow flurries so far this year, including on Christmas, but it looks like this weekend will be the first serious snow storm. Right now, there is a nice blanket of snow on the ground, and plenty of holiday decorations still up to highlight the wintery scene.

With snow and ice, however, come weather related car accidents, slip and falls, and other injuries. Every year I do a snow and ice blog post around this time. Injuries happen all year long, but claims based on winter-time car accidents or slip and falls are particular types of personal injury lawsuits that I have a great deal of experience with.

If you need a personal injury attorney, contact me. A lawyer can help you or your loved one get compensation for your snow and ice accident related injuries.  For a brief video describing my services as a Suffolk County Car Accident and Slip and Fall Attorney, click this link.

Products Liability Case Discussed in NY Law Journal

Almost two and a half years ago, back in June 2008, I wrote a post about the de facto merger doctrine.  (Prior post here).  At the time, I was working on products liability case where the issue came up.  The case was hotly litigated.  Not only had the company gone through several incarnations since the manufacture, there were also issues of third-party alterations, warnings, and everything you could think of in a defective product case.  This Spring, the motions for summary judgment were litigated, and the Court found factual issues precluding summary judgment and permitted the case to go to trial.  You can read the decision, here.  Tonight, I'm reading through blog posts, and I come across an article on law.com, from the New York Law Journal, discussing the case! The article is by Steven F. Napolitano and Peter Luneau, entitled "Determining Successor Liability."

Personal Injury Attorney - Car Accident Appeal Decided by Second Circuit

I recently briefed and argued an appeal in the Second Circuit - the Federal appellate court - related to New York State's serious injury threshold. The District Court dismissed my client's car accident lawsuit on summary judgment (i.e., decided the case on papers without a trial).  The issue on appeal was whether there were triable questions of fact as to whether the plaintiff met New York's "serious injury" threshold.

Nearly all states have enacted a no-fault laws requiring that everyone maintain minimum car insurance, with both drivers' insurances guaranteeing that medical bills for anyone injured in an accident are paid (up to a certain limit).  Even where neither driver is insured, the statute creates a state-operates fund which effectively insures otherwise uninsured drivers up to $25,000.  

The trade-off for guaranteeing medical treatment and ensuring a responsible payor is that people cannot recover for their pain, suffering and emotional distress unless they are "seriously" injured, which is defined as death, a fracture, a significant limitation, a consequential limitation, or being unable to perform usual and customary activities for at least 90 of the first 180 days after the accident.  So-called "soft tissue" injuries are not enough for a lawsuit unless they fit into the  "significant limitation," "consequential limitation" or 90/180 categories. (NY Insurance Law 5102).  

In Luo v. Mikel, the plaintiff suffered a torn meniscus, had corrective surgery, and regularly attended physical therapy for three months.  Although the lower court dismissed the case, on appeal the Second Circuit reversed and found that there was a question of fact as to serious injury.  (You can read the decision at the Second Circuit website and Findlaw, and read coverage at the NY Daily Record).  

How to Negotiate and Settle A Personal Injury Case

For a brief video describing my services as a Suffolk County Personal Injury Attorney, click this link.

Most cases result in settlement. Some are dismissed outright, and a small handful make it to trial, but most cases are resolved through an agreement between the parties.  Thus, the ability to value, negotiate, and settle a case is an incredibly important skill for a civil litigator. Valuing and negotiating a case is a difficult process, which requires experience and talent. Ultimately, the settlement value of any given case is what one side is willing to pay and the other side is willing to take. Sometimes, these amounts never meet and the case should be tried.

There are four major factors to consider when evaluating a personal injury case: liability, sustainable value, comparative fault, and collectability.

STEP 1: ASSESS LIABILITY

The first step in evaluating any case is liability: how sure are you that your side will win. In some personal injury cases, such as a pedestian knock-down or a ladder/scaffold failure, liability generally strongly favors the plaintiff. In others, such as most slip and fall cases, liability tends to favor the defense.

In some cases, where liability is clear for one side or the other, the case may be subject to dismissal or summary judgment, meaning that the judge looks at the undisputed facts and decides which side wins as a matter of law. In most cases, however, there are questions of fact and credibility that must be answered by a jury if the case does not settle. When a jury gets involved, there is always a level of unpredictability.
Once you've evaluated the odds of winning, that number should be assigned a percentage or a range of percentages. Knowing how likely you are to win, and what percentage your client will be held responsible, requires knowing the law, knowing both sides' arguments and evidence, and being able to objectively apply the law to the facts.
STEP 2: ASSESS THE DEFENDANT'S EXPOSURE

A defendant's exposure is the amount it will cost if the defendant loses the case: its worst case scenario. This value is derived by examining the sustainable value of the case (your best case scenario) and factoring in comparative fault. Conversely, the plaintiff's worst case scenario is losing and getting nothing.

A - determine the sustainable value of the case

To know what a case is worth, you need to have some idea of the full value under the best possible circumstances. In a personal injury context, there are often records of settlements and verdicts in cases with similar injuries. There are some commercial publications, such as the jury verdict reporter, but the most valuable records are published court decisions.

With most jury verdicts, the parties have a right to ask that the amount be reviewed by the trial judge and, if necessary, the appellate court. In New York State Court, the Appellate Division takes an active role in reviewing jury verdicts, and will lower or increase the award if it "deviates materially from reasonable compensation." The Federal Courts are less active in reviewing jury verdicts, and will only change an award if if "shocks the consience." Federal juries, however, must decide civil cases with a unanimous verdict of eight jurors; whereas a NY State jury in a civil case can issue an award with 5 of 6 jurors agreeing.

When the injury you are dealing with has been examined published decisions, there may be case law that provides a range of "sustainable value" for that injury. By "sustainable value," I mean the amount, if everything goes in your favor, that the court will let the plaintiff walk away with.  One notable blog, John Hochfelder's New York Injury Cases Blog, focuses on discussing these decisions.  As John often notes, the courts often leave these decisions purposely vague. 

Every person, and every injury, is unique. Just as with evaluating liability, determining damages is as much of an art as it is a skill. The plaintiff's age and other unique factors (pre-existing conditions, unique limitations, etc.), are important to consider when comparing cases.
Juries generally award personal injury damages in two parts: past and future. Within that, the damages may further be divided into lost earnings and pain and suffering. To compare a case, you will need to break down this number by year so as to compare it to your plaintiff.
In examining comparative injuries, you also need to take into account the type of case and the venue. For example, a spinal injury is generally worth more in a construction accident case than in a motor vehicle case. With respect to venue, there are conservative counties and liberal counties. A Bronx verdict is not particularly informative when assessing the value of a Nassau County case.
B- If applicable, assess a range for comparative fault

In some cases, comparative fault (the plaintiff's level of responsibility) is not an issue. It is not an issue, for example, where the plaintiff was a passenger in a car, or where liability is "strict," such as in a ladder/scaffold failure. In contrast, comparative fault is nearly always an issue in slip or trip and fall cases.

When the plaintiff's fault is an issue, comparative fault can be one of the most difficult factors to evaluate. It is extremely fact sensitive, and something over which different people will have varied opinions. Also, many times, comparative fault overlaps with the liability inquiry. 

The choice of law can make this inquiry particularly important. In personal injury cases, the law of the state where the accident happened usually governs. In New York, in most cases, a person can recover even if they are mostly (but not entirely) at fault, although the award will be reduced by their proportionate share of negligence. Other states, such as New Jersey, do not let the plaintiff recover if they are more than 50% at fault.
C- Do Some Math

The full sustainable value of the case, minus comparative fault, gives you a sense of the defendant's exposure. From that, you can determine a settlement range by discounting liability.  Say a case has a full sustainable value of $750,000 to $1 million, but the plaintiff was 25-50% at fault and there's a 30-40% chance the defendant won't be held responsible at all.  In that scenario, the defendant's exposure is between $375,000 (750k - 50% comparative) and $750,000 ($1 million - 25% comparative). Thus, the settlement value is between $225,000 (375k - 40% liability discount) and $525,000 (750k - 30% liability discount). 

These numbers, of course, are fictitious, and would need to be adjusted to reflect the facts of any particular case. Realize also, both sides will likely have a different assessment.
STEP 4: COLLECTABILITY, LIENS, AND OTHER FACTORS

Often, defendants have limited insurance coverage. Because of the difficulty collecting a judgment, the reluctance of insured defendants to contribute to a settlement beyond their policy limits, and the fact that the average individual does not have significant assets, the insurance coverage frequently serves as a cap on the amount of money someone can receive. You can have a million dollar injury, but a basic $25,000 motor vehicle policy and an impecunious defendant, leaving no-where else to look for additional compensation (other than, perhaps, social security).

Liens may also pose a problem with settlement. Any Workers Compensation lien or Medicare/Medicaid lien must be paid from the client's share. These don't interfere with the settlement per se, but are factors that can make it more complicated.

Litigation cost can also be an issue. If a case goes to trial, both sides have to pay for doctors to testify, which can be expensive. This should never be a decisive factor, but it is (along with the unpredictability of a jury) a justification for the plaintiff giving a small discount to avoid trial, and the defendant offering "nuisance value" to make the case go away. Not all cases warrant such a discount, but in some situations it is appropriate.

STEP 5: NEGOTIATE

Negotiating a settlement is a back-and-forth process of demands and offers. The starting point is almost always absurdly low or absurdly high. You never start off telling the other side exactly what you want because then you have no room to negotiate.

Generally, the plaintiff leads off the negotiations with a demand. Having evaluated the case, the plaintiff's attorney should have a target number in mind, and will make a demand that is significantly higher than that. The defendant, in turn, responds to the demand with some sort of offer. Based on the defendant's response (the number will, of course, be extremely low), the plaintiff can get a sense of how the defense has valued the case.

Both sides will at least appear set in their ways, but that is just how attorneys work. It is not just an exchange of numbers, but also a discussion of the merits of the case.

Especially if your side has a strong case, you don't have to settle. One of the most pursuasive things you can say in settlement negotiations is that you want to try the case (as long as you mean it). In fact, some insurers will keep their offers low until you prove that you have no problem going to the jury; conversely, some plaintiff's attorneys will cave rather than take a case to trial.

As a case progresses through discovery, there are several instances where the parties exchange information. These are the ideal points to discuss the case with the other side and revise the demand/offer.  Each move is goal-oriented. If you give your bottom line, you probably won't get it: they aren't telling you what they are really willing to pay; why should you tell them what you are willing to take?

Bidding against yourself, generally, is a mistake. When one side moves, its the other side's turn. That's just how it goes.

Choosing whether to accept or reject a settlement is up to the client. Some clients are risk takers, while some are risk-averse. It is important to get authority, to manage the client's expectations, and to make sure the client is on-board with your perspective of the case. That said, clients, generally, have no experience on which to value their own case. That's what they hired you for. It is up to you as their attorney to explain what the case is worth, and to make them feel confident that their attorney is fighting to get them the best result.

Personal Injury Attorney - Bar Fight Injury Triggers Dram Shop Claim Where Assailant's "Speech Was Slurred and His Eyes Were Red and Watery."

The Appellate Division, Second Department, recently released its decision in Morris v. Bianna. The case involved a bar assault, and the Appellate Division found that there was a question of fact as to whether the assailant had been sold alcohol in a "visibly intoxicated" state, thereby making the bar liable under the Dram Shop Act.  The strongest evidence in the plaintiff's favor was testimony from "the manager of the bar on the night of the occurrence ... that, when he observed [the assailant] shortly after he had stabbed the plaintiff, Penzo's speech was slurred and his eyes were red and watery." 


As many of you may be aware, courts tend to take the path of least resistance.  They won't, for example, address a Constitutional claim if they don't have to.  Similarly, where there are multiple legal issues, appellate courts will often decide the case based upon the simplest, most straight-forward, argument.  


In this case, there was another issue that the Appellate Division didn't comment on and, instead, left for the trial court.  The Dram Shop Act, N.Y. General Obligations Law § 11-101, creates a private right of action against a drinking establishment for injuries caused by the unlawful sale of alcohol.  Under Alcoholic Beverage Law § 65, unlawful selling includes sale to minors, to "any visibly intoxicated person," or to "any habitual drunkard known to be such."  


This case had a solid "visibly intoxicated person" argument, but I also threw in an argument that the assailant was a habitual drunkard.  There was plenty of evidence to support this but, to my knowledge, the particular issue had never been addressed in New York case law.  


Every State has a Dram Shop act, and many of them are similarly phrased.  They derive from an old English law.  A "dram" is a British word for a shot.  So, when the defendant made an issue of the fact that New York courts hadn't defined "habitual drunkard," I found a few courts that did.  


Colorado and Florida's highest courts have squarely addressed the issue.  The Colorado court found that "'known habitual drunkard' is a term of ordinary and common usage, and fact finders may apply its plain and ordinary meaning.... Whether a person is a habitual drunkard and whether the vendor of alcohol knew the patron was a habitual drunkard when served alcohol are factual inquiries based on the circumstances of each case.” K & S Corp. v. Greeley Liquor Licensing Auth., 183 P.3d 710, 713-714 (Colo. 2008).  Similarly, Florida's court found that knowledge of whether a person is a habitual drunkard “can properly be established by circumstantial evidence,” and “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1049 (Fla. 1991). 


There were also a few old cases that defined the term in contexts other than the Dram Shop Act.   See  Kendall v. Ewert, 259 U.S. 139, 42 S. Ct. 444 (1922)(a “known drunkard” is someone who is “generally recognized in a community as a common drunkard,” having “sacrificed themselves, to the craving for strong drink”); Sawyer v. Sauer, 10 Kan. 466, 471 (Kan. 1872)(“Proof of drunkenness so habitual as to be generally known in the community is sufficient to raise a presumption of knowledge.” )


Needless to say, the Appellate Division declined my invitation to decide a question of first impression in a relatively straight-forward Dram Shop case.  


RELATED POSTS

* Establishments Serving Alcohol Can Be Held Liable For Injuries Caused By Intoxicated Patrons

* Drunk Driving Dunce Hat (Long Island Legal News)

LONG ISLAND CONSTRUCTION ACCIDENT ATTORNEY

Injured construction workers, in addition to workers compensation, often have a right to bring a lawsuit against the property owner and the general contractor.  New York's worksite safety laws make the owner and general contractor responsible for

* Injuries Where A Worker Falls From a Height

* Injuries Caused By Falling Objects; and

* Injuries Caused By Industrial Code Violations

I have extensive experience representing injured construction workers.  I have brought these cases to trial, and have argued notable appeals, including Zheng v. Cohen, 52 A.D.3d 801, 861 N.Y.S.2d 717 (2d Dept. 2008), where the court found that the question of whether a property is a one- or two-family dwelling could be sent to the jury; and Stawski v. Pasternack, 54 A.D.3d 619, 864 N.Y.S.2d 412 (1st Dept. 2008), where the court found that falling object liability applies even where the object was not actually in the process of being hoisted or secured at the time it fell.  

Personal Injury Attorney - Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange

The Court of Appeals recently issued key a Labor Law 240(1) decision clarifying the meaning of the statute.  In Runner v. New York Stock Exchange, the plaintiff injured his hands when he was asked to lower a large reel down a staircase using a make-shift hoist.  Rather than loading the reel onto an actual hoist or pulley, a rope was tied around it, which was strung over a wooden rail, and the plaintiff was asked to hold one end of the rope to act as a counterweight.  The matter went to trial in a Federal District Court, went to Second Circuit, and the Second Circuit certified the legal issue to the New York State Court of Appeals.

Defendants argued that, for Labor Law 240(1) to be applicable, "gravity must operate directly upon either the plaintiff or upon an object falling." The Court of Appeals responded, however, that ""the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential."   Labor Law 240(1) was applicable because "a pulley or hoist should have been used."

The defense bar constantly tries to limit the scope of this stutute.  It is a broad statute, covering gravity-related risks, and requires owners and contractors to provide safety devices to guard against that risk  The Court of Appeals did not express any new law, or new interpretion, but, rather merely once again rejected an attempt to create a bright-line rule where none was necessary.  Although the "de minimus height differential" argument is sometimes used as a manner of expressing that a particular circumstance did not present a gravity-related risk, at no point have New York's Courts expressed any sort of minimum height differential.  In fact, "falling object" cases have been upheld where the fall was, essentially, horizontal.

Over at the New York Civil Law Blog,  Matt Lerner points out that the Court focused on the nature of the object being hoisted or secured. The nature of the object is not a new consideration -- notably, in cases such as Outar v. City of New York, the Court has previously commented on objects being the type of object that requires securing -- but it is an under-appreciated factor that the Court makes plain is very relevant to the Labor Law 240(1) inquiry.

Eric Turkewitz at the New York Personal Injury Law Blog notes that this decision is part of a trend away from defense oriented decisions. A lot of it has to do with which cases the Court of Appeals chooses to hear, but there has been a trend.  Looking at the leading Court of Appeals decisions over the last five years, six of eight -- Runner, Quattrocchi(2008), Sanatass (2008), Broggy (2005), Outar (2005), and Stejskal (2004) -- have been Plaintiff friendly; in the five years prior to that, however, only two of five were found in the plaintiff's favor.    

RELATED POSTS

- Construction Accident Trial on the One- or Two-Family Dwelling Issue
- Construction Accident Attorney[Violations Of The Industrial Code]
- Construction Accident Attorney [Falling Workers And Objects]
- One- Or Two- Family Dwelling Exception
- Out Of Possession Landlords Are Still Responsible For Construction Accidents
- Court Of Appeals Clarifies That Construction Safety Laws Apply To "Cleaning" Activities Even When Not Related To Construction

Personal Injury - The December 2009 Blizzard

One of the things that makes being a lawyer interesting is that you need to learn a wide variety of things.  If applicable to your case, you need to learn medicine, engineering, and -- meteorology.

We just had our first blizzard of this Winter, so this is my snow-related post.  Cases involving slip and falls on snow and ice require developing a theory as to why a third-party is responsible for the  person who slipped's injuries.  You could end up, a summer or two from now, trying to explain to a mid-July jury that snow starting late-afternoon on Saturday December 19th, fell lightly for a while, then took a break after about an inch, picked up again as it got dark, and by Sunday afternoon there was 26" on the ground in Suffolk out on Long Island, and 11" in the City.

The theory could be that a driver didn't take extra care on an icy road; or that someone failed to shovel or plow a public sidewalk; or shoveled but didn't salt, leaving ice behind; or - if temperatures rise above freezing, as they are supposed to - didn't salt after a partial thaw to prevent black ice from forming from the re-freeze.

So, there's the legal angle, but talking about injuries is depressing.

Snow is fantastic.  It looks cool, it's fun to play with. For a little while, you can pretend you are out on a glacier (glassy-er) with Bear Gryllis; on Hoth or some othe Sci Fi Ice Moon; or foraging with primitive man during the ice age.  You can do something romantic with your wife, make a fire and smores, go sleigh riding, have hot-cocoa, or take your dog out to play.  The blizzard coincided with the US airing of the newest Doctor Who special, "Waters of Mars." And, there's going to be snow on the ground for Christmas!


For a brief video describing my services as a Suffolk County Slip and Fall or Car Accident Attorney, click this link.

RELATED POSTS:


* How to Protect Your Legal Rights If You Slip and Fall On Snow and Ice
* Slip and Falls on Snow and Ice
* Should I Hire An Attorney?


AROUND THE WEB 


* Long Island Legal News, "Slip/Trip and Fall Appellate Division Decisions." 
* Huffington Post, "2009 Blizzard As Seen From Space." 
* Slaw, "The Law of Winter."
* NY Times, "Commuters Still Feeling Effects of Snow."  


AND... SOME FUN PICTURES AND VIDEO

Personal Injury - The Workers Compensation Lien, In A Deficiency Scenario, Unfairly Usurps Personal Injury Recoveries

Worker's compensation is a great idea.  In it's modern form, it is a mandated insurance program whereby people who are injured at work, regardless of fault, can have their medical bills paid and recover for lost wages. In exchange for this protection, workers cannot sue their employers.  In the U.S., these laws originated in the early twentieth century, and by 1948 every state had a worker's compensation scheme.

In cases where there is a third-party at fault for the worker's injury, and the injured worker brings a personal injury suit, New York law gives the worker's compensation insurance carrier a right to recover from the personal injury proceeds the amount it paid or is obligated to pay.  When this happens, the worker's compensation lien is reduced by a proportionate share of the litigation cost (i.e., attorneys fees and expenses).  This issue regularly arises in construction accident cases, and frequently occurs in other types of cases as well.

In some cases, where the worker receives full compensation, and is not permanently disabled from work, the lien is fair and prevents double-recovery for lost wages and medical expenses. The same fairness, however, would be accomplished by allowing a collateral source set-off for worker's compensation payments.

The more problematic case arises where issues of comparative fault, questionable liability, or limited insurance prevent full recovery, or where the injured person has a permanent disability and will be receiving permanent worker's compensation benefits.  In those cases, the worker's compensation lien can create a terrible inequity.  When the worker recovers less than the lien amount (after reduction for the full litigation cost), the compensation carrier has a right to take the worker's entire share of the recovery.  Where the worker's compensation carrier is paying continuing benefits, the compensation carrier has a right to its full lien (minus a proportionate share of litigation costs), and can also take a credit against future benefits (i.e. go on a "holiday") in the amount of the worker's recovery from the at-fault party. (See Burns v. Varialle; Sheer v. State Ins. Fund). Essentially, it is possible for the worker to go through an entire lawsuit, perhaps appearing for depositions or even trial, and then receive nothing other than a lump-sum advance on worker's compensation benefits they would have received anyway.

Medical insurers used to be able to do something similar, asserting a subrogation lien against personal injury recoveries for benefits they had paid, but New York recently passed a law rendering such liens void. (Coverage Counsel; NYPILB; Cent. NY Injury Blog). 

The reasoning behind this new law, that the insurer received premiums in exchange for its payout obligation and it is unfair for the insurance company to benefit at the expense of the injured party, is equally applicable to worker's compensation insurers.  Indeed, in a medical insurance context, the collateral source rule (desribed above) applies to prevent double recovery.  The new law, however, does not apply to worker's compensation insurers (whose lien is protected by a seperate statute).

Accordingly, I submit that the State Legislature should consider an amendment to the Worker's Comp Law similar to the recent law affecting medical insurers.  The collateral source set-off approach still avoids double recovery, but is preferable for plaintiffs because it accomodates pain and suffering compensation in a disputed case notwithstanding a large reimbursed for economic losses.

Construction Injury Trial On The One- Or Two- Family Dwelling Issue

I just finished a trial in Queens. It was a construction accident case, and the issue was whether a property consisted of a one- or two-family dwelling.

Under New York's construction site safety laws, specifically Labor Law 240(1) and 241(6), owners and general contractors are jointly responsible for certain types of construction accidents. This rule does not apply, however, to owners of one- or two-family dwellings who do not direct or control the work.

In this case, my client had fallen through an unprotected floor opening and was severely injured. The general contractor did not have proper insurance, and had gone out of business (leaving no assets to go after). The only viable defendants were the property owners, a retired couple.

The owners had torn down a one-family ranch and were building two two-story houses on the lot. They had not yet received a certificate of occupancy, but the plans and permits listed the structures as two one-family houses. Each house was initially supposed to have five bedrooms, but the plans were later changed (after the complaint was served) so that each house had three bedrooms. One was supposed to have two full and two half baths; the other was supposed to have one full and three half baths.

In those houses, the owners claimed that they would reside in one; their oldest son (42 years old, who paid approximately half of the construction costs) would become the owner of other and live there with his wife and two kids; and the two other adult sons would rent rooms from either their parents or older brother. There was no set "rent," but the brothers (in their 30's, both recently laid off) would pay what they could afford. My client was injured in the house that the owners claimed they intended to occupy.

We suspected that the owners either planned to sell the property for a profit, or have additional tenants, but they flatly denied it during both their depositions and at trial.

As part of the project, the parents established a home owners association creating various easements over the lots after they are formally divided. The home-owners association by-laws contemplated tenants on the property, sale of the property, and possibly building a third house or buying another adjascent house in the future.

This case raised an unsettled issue of New York law: was this purported family compound a one- or two-family dwelling?

There are several cases from the New York Court Of Appeals addressing the one- or two-family dwelling exception. Under these cases, the issue depends on the "site and purpose of the work." Stejskal v Simons; Khela v. Neiger). Where the construction project involves multiple structures with "arguably unifying features," the intended occupancy of the structures can be combined. (Mandelos v. Karavasidis). The one- or two-family dwelling exception is an affirmative defense, and the defendant has the burden of proof.  (Van Amerogen v Donnini).

In addition to intended occupancy, there was also the issue of commercial use. The homeowner's exemption applies where the project is "undertaken solely in connection with... residential use, even if the construction "may have fortuitously affected another area of the property that was used for commercial activities." (Cannon v. Putnam). The exception does not apply, however, if the one- or two-family dwelling is used "solely and exclusively" for a commercial purpose (such as preparation for rental or sale). A property can be consider "solely and exclusively" commercial even if it is also the owner's primary residence. (Lombardi v. Stout; Van Amerogen). The Court of Appeals has not announced a rule for situations where the distinction between commercial and residential use is a matter of degree.

Although it was a thorny issue, the trial seemed to be going in my favor. The property owners were hostile during cross-examination, and were caught making several misrepresentations. For example, the husband had claimed during his deposition that all three of his sons were single and lived at home; at trial we heard that the oldest son had been married for ten years and lived on hid own. The wife authenticated blueprints on direct, laying a well-rehearsed foundation; on cross, however, she admitted that she had only seen them once several years ago and had no idea what she was looking at. She also equivocated about whether the basement was divided into seperate rooms, and where the younger sons were going to live.

As the trial continued, the defendants moved off from their nuisance-value offer. After significant discussion (and my firm's managing partner coming in to close the deal), we agreed to a high-low settlement: agreeing not to go after the defendants' individual property if we won in excess of the insurance policy, and guaranteeing our client a not-insignificant amount if we lost. As part of the high-low, both sides waived their right to appeal.

Prior to closing arguments, both sides moved for a directed verdict. In addition to the Court of Appeals cases above and others, I relied on a recent case from the Third Department, Nudi v. Schmidt, which found that renting to an adult child can be considered a commercial purpose.  Defendants relied largely on Baez v. Cow Bay Construction, a 2003 Second Department case finding that the homeowner's exception applied where a family had torn down their old house, built two one-family homes for the family to live in, and put the properties in a corporate name but insisted that they intended to live there.

Before closing arguments, both sides moved for directed verdicts, and the court dismissed the case as a matter of law. We knew it was a possibility, but it was extremely disappointing. I felt we had a solid argument that: first, the anticipated occupants -- two couples and two grown men -- counted as more than two families; and, second, the occupants, although related, had a business arrangement that made the construction predominantly commercial.

Was the judge right?

RELATED POSTS


- Construction Accident Attorney[Violations Of The Industrial Code]
- Construction Accident Attorney [Falling Workers And Objects]
- One- Or Two- Family Dwelling Exception
- Out Of Possession Landlords Are Still Responsible For Construction Accidents
- Court Of Appeals Clarifies That Construction Safety Laws Apply To "Cleaning" Activities Even When Not Related To Construction

Personal Injury - Construction Accident Attorney [Injuries From Violations Of The NYS Industrial Code]

Labor Law 241(6) reads:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

This law makes owners and general contractors responsible for ensuring that the New York State Industrial Code is not violated at their work sites, and allows injured construction workers to file a lawsuit to recover damages for pain and suffering if they suffer an injury caused by a violation of the Industrial Code.

Under Labor Law 241(6), the owner and general contractor can be held liable regardless of whether the owner or general contractor directed or controlled the work. Cunha v City of New York, N.Y.3d 504 (2009). Not every provision of the industrial code is specific enough to give rise to liability, however, and the worker's own negligence will be considered. Misicki v Caradonna, 12 N.Y.3d 511 (2009). The owner or general contractor may also argue that the injuries were caused by something other than a violation of the industrial code, and there may be other parties (such as the equipment manufacturer) who are responsible. Pavlou v. City of New York, 8 N.Y.3d 961 (2007).

The Industrial Code contains numerous detailed provisions regarding specific hazards common to construction sites.  Below is a list of some of the more common ones.

Tools and Equipment.

• Hand tools must be kept in good repair, free from burs or cracks.
• power-driven machines, such as saws and belts, must have proper guards to protect workers from cutting and tearing injuries to their hands and feet.  A common example of a violation of this rule is circular or bench saws where the safety guard has been broken or removed.  
• Jacks, forklifts, and other lifting devices must be well maintained and properly rated for the load they are required to carry 
• Safety goggles must be provided to workers exposed to risk of eye injury, and a hard hat or helmet must be provided to workers exposed to risks from falling or flying objects. 

Property:

• Stairways must be safely constructed and have guard rails that meet particular specifications.
• Proper lighting must be provided
• Walls, concrete, and steel work must have shoring or bracing during construction or demolotion
• Flooring must be stable and secure

Fire, Electricity, and Chemicals:

• Electricity must be turned off or, it if cannot be turned off, proper protection must be taken.
• Compressed gas containers, lines, and hoses must be properly stored and kept safe
• Explosives must be handled with care, and in compliance with particular regulations
• Proper protective clothing must be provided if workers are exposed to toxic or corrosive chemicals, and respirators must be provided to workers exposed to toxic fumes. 

Protection Against Gravity-Related Risks:

• Workers exposed to a risk of falling must be provided with safety harnesses, lifelines, nets, scaffolding, roof brackets, and other safety devices where appropriate. 
• Materials stored at a height must be properly secured to prevent falling;
• Shafts must have proper guards and warnings.  

If you are looking for a construction accident lawyer, feel free to contact me. 

-------------------------------------------------------------

Related Posts:

• Owners and general contractors are responsible for gravity-related worksite injuries under Labor Law 240(1)
• A Falling Cinder Block Is A Gravity Related Risk Under The Labor Law, And Does Not Need To Be In The Process Of Being Hoisted Or Secured
• Out Of Possession Landlords May Still Be Responsible For Construction Accidents On Their Property
• Whether A Property Is A One- Or Two-Family Dwelling Under The Labor Law Depends Upon The Site And Purpose Of The Work

Personal Injury - Construction Accident Attorney [Falling Workers And Objects]

Construction accident litigation was one of my one of my first niche practice areas as a lawyer.  I have handled numerous trials and appeals, and have published two articles on the topic.


New York State passed a series of laws in the nineteenth century, with the emergence of skyscrapers and other major construction projects, designed to ensure construction site safety. Those laws still protect workers today.

Under New York's construction safety laws, workers who are exposed to gravity related risks should always be provided with proper protective devices. New York's Labor Law 240 (1) specifically requires contractors and property owners to provide workers with “proper protection” against gravity related hazards, such as falling from a height or being struck by a falling object.

In pertinent part, the statute reads:

All contractors and owners and their agents, except owners of one and

two-family dwellings who contract for but do not direct or control the

work, in the erection, demolition, repairing, altering, painting,

cleaning or pointing of a building or structure shall furnish or erect,

or cause to be furnished or erected for the performance of such labor,

scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,

braces, irons, ropes, and other devices which shall be so constructed,

placed and operated as to give proper protection to a person so

employed.

Statutes such as Labor Law 240(1) offer two major benefits for construction workers. First, they encourage work-site safety by motivating owners and general contractors (through awareness of responsbility and fear of liability) to strictly oversee the safety practices of their subcontractors.

Second, when workers are injured, these laws provide injured workers with an opportunity to hire a lawyer and obtain compensation for their injuries through a personal injury lawsuit. In general, workers who are injured on the job are entitled to Worker's Compensation, but the trade-off for Worker's Compensation is that injured workers cannot sue their employer for work-related injuries. By placing ultimate responsibility for worksite safety on the owners and general contractors, New York's laws provide injured workers with a responsible (and usually well insured) party other than their employer whom they may sue for damages in addition to Worker's Compensation.

Although the statute appears straight-forward (the relevant portion contains less-than 100 words), interpreting the precise language of Labor Law 240 is one of the most frequently and aggressively litigated issues in the New York Courts. Defenses include, for example, that owners of one- or two-family dwellings may be exempt from liability; the statute only protects certain enumerated activities, not routine maintenance; not every fall qualifies as a gravity-related risk; and an injured worker may not recover if they are entirely at fault for their own injuries.

Below is a list of the leading interpretive cases from the New York Court of Appeals, with links to each decision.

LEADING CASES

Strangio v Sevenson Envtl. Servs., Inc., 15 N.Y.3d 914, 913 N.Y.S.2d 639 (2010)(triable issue of fact as to whether defendant provided "proper protection.")


Belding v Verizon N.Y., Inc., 14 N.Y.3d 751, 898 N.Y.S.2d 539 (2010) (Applying bomb blast film to windows counts as a "significant alteration").  


Gallagher v New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010)(summary judgment granted to plaintiff despite testimony from general contractor that safety harnesses were available, where there was no evidence that the injured worker knew where the harnesses were or had been instructed to use them).  


Holly v County of Chautauqua, 13 N.Y.3d 931, 895 N.Y.S.2d 308 (2010)(question of fact as to whether scaffolding provided "proper protection.")

Runner v. New York Stock Exchange, 13 N.Y.3d 599 (2009)(where plaintiff was required to hold one end of a rope, acting as a counterweight while an object was lowered, and was pulled up into the make-shift hoist, injuring his hands, Labor Law 240(1) was applicable because  "a pulley or hoist should have been used... the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.")

Quattrocchi v F.J. Sciame Constr. Corp , 11 NY3d 757 (2008)(wooden planks that were used as a make-shift shelf above a door frame and fell, striking a worker, constituted the type of falling object risk that the statute protects against).

Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333 (2008) (the term "owner" includes an out of possession landlord)

Broggy v Rockefeller Group, Inc., 8 N.Y.3d 675 (2007)(although it does not cover "routine household window washing," "cleaning" is its own category under the statute; it does not need to be connected with a construction site and applies equally to interior and exterior cleaning).

Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550 (2006)(injured worker was entirely at fault for his own injuries where a ladder of the proper height was available to him, but he chose instead to stand on the top-cap of a short ladder).

Outar v. City of New York, 5 N.Y.3d 731 (2005)(a dolly that rolls off a ledge and strikes a worker is the type of falling object risk that the statute protects against).

Montgomery v. Federal Express Corp., 4 N.Y.3d 805 (2005)(Plaintiff was the sole proximate cause of his own injuries where he chose to use an upside-down bucket rather than an available ladder).

Stejskal v Simons, 3 NY3d 628 (2004)(one- or two-family dwelling exception applies where the "purpose of the construction" was to convert a multi-family dwelling into a one family dwelling).

Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280 (2003). (If an injured worker was somewhat at fault for their own injuries, but not entirely at fault, they are nonetheless entitled to be fully compensated for those injuries. “Contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury… Section 240 (1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions.”)

Panek v County of Albany, 99 N.Y.2d. 452, 458 (2003)(Removing a large air conditioning units two weeks before a demolition project was not part of or ancillary to the demolition, but was a "significant alteration" which is also an enumerated activity under the statute).

Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526, 526 (2003)(routine maintenance for normal "wear and tear" is not a significant alteration to which the statute applies).

Narducci v. Manhassett Bay, 96 N.Y.2d 259, 267 (2001)(a falling window pane that was unrelated to the construction is not a falling object risk that is protected by the statute).

Bond v. York Hunter Constr., Inc., 95 N.Y.2d. 883, 885 (2000)(slipping while climbing out of a construction vehicle is not an elevation related risk calling for a protective device).

Melo v. Consolidated Edison Co., 92 N.Y.2d. 909 (1998)(§ 240 has “historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites ... in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites”)

Weininger v Hagedorn & Co., 91 N.Y.2d. 958, 960 (1998)(Running computer and telephone wires constitute a significant alteration, and there was a question of fact as to whether plaintiff, who fell while trying to forcibly yank a cable wire through a hole, was the sole proximate cause of his own injuries).

Joblon v. Solow, 91 N.Y.2d., 457 (1998)(“Defining [the terms of labor law 240(1)] with precision… is a highly elusive goal”... installing a built-in wall clock is a significant alteration).

Brown v. Christopher St. Owners Corp., 87 N.Y.2d. 938 (1996)(“the ‘cleaning’ encompassed under the statute does not include the routine, household window washing… [but does include] the cleaning of all the windows of a large, nonresidential structure such as a school")

Khela v. Neiger, 85 N.Y.2d 333 (1995)(whether a property is a one- or two-family is determined by the site and purpose of the work being performed).

Mandelos v. Karavasidis, 86 N.Y.2d 767 (1995)(there was a question of fact for a jury as to whether two neighboring yet jointly owned two-family dwellings were entitled to the one- or two-family dwelling exception, both due to the occupancy and the fact that the construction may have enhanced commercial, rather than residential, usage)

Misseritti v. Mark IV Constr. Co., 6 N.Y.2d 487, 491 (1995) (a wall that collapses after having been finished is not the type or risk protected against by the statute because Labor Law 240(1) applies to during the course of construction, not to gravity related risks from a completed structure).

Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d. 494 (1993)(back strain caused by repeatedly stretching is not a gravity-related risk).

Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991)(the risk of stepping in a bucket of oil is not a gravity-related risk and thus not protected against by the statute)

Van Amerogen v Donnini, 78 N.Y.2d 880, 880 (1991)( “The [one- or two-family dwelling] exception may be extended only so far as statutory language warrants, and all doubts should be resolved in favor of statute's general provision rather than exception”).

OTHER RESOURCES

Related Posts:

• Owners and General Contractors Are Liable For Injuries Caused By Violation Of the NYS Industrial Code, Which Regulates Tools And Equipment, Property Maintenance, And Fire, Electricity and Chemical Safety
• A Falling Cinder Block Is A Gravity Related Risk Under The Labor Law, And Does Not Need To Be In The Process Of Being Hoisted Or Secured
• Out Of Possession Landlords May Still Be Responsible For Construction Accidents On Their Property
• Whether A Property Is A One- Or Two-Family Dwelling Under The Labor Law Depends Upon The Site And Purpose Of The Work

NYS Deptartment of Labor, New York State Industrial Code, "Protection in Construction, Demolition, and Excavation Operations."

Occupational Safety and Health Adminstration, OSHA

NYC Department of Buildings, Construction Safety

NYC Occupational Safety and Health Non-Profit, Homepage

New York State Trial Lawyer's Association, New York's Scaffold Law: An Essential Protection For Immigrant Construction Workers

New York State Trial Lawyer's Association, Labor Law 240(1) Myths