2120RE: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 03 Aug 2009 ** Labor Law - Subsequent Accidents **
- Aug 3, 2009
I think it would all depend on the circumstances- it would be a case by case basis- take your example of the blind guy- so u render him blind- he steps out into traffic one day and is run over and looses both legs- who’s responsible? Well- wouldn’t assumption of risk come into play? he knows he’s blind- Did he use a cane? Guide dog? Other pedestrians -Common sense? Or is he just a dumb blind guy?
From: TheRogakReport@yahoogroups.com [mailto:TheRogakReport@yahoogroups.com] On Behalf Of insurancelawyer
Sent: Monday, August 03, 2009 6:02 PM
Subject: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry The Rogak Report: 03 Aug 2009 ** Labor Law - Subsequent Accidents **
DEFENDANT RESPONSIBLE FOR FIRST ACCIDENT MAY BE LIABLE FOR SECOND ACCIDENT CAUSED BY EARLIER INJURY
Clavijo v. Universal Baptist Church
2009 NY Slip Op 51672(U)
Decided on August 3, 2009
Supreme Court, Kings County
Edited by Lawrence N. Rogak
This Labor Law case stands for several different propositions of law, but I have edited out all but the one I find most interesting, to wit: if a defendant has legal liability for a worker's injuries, might that defendant also be responsible for a subsequent accident if the worker claims that the injuries he sustained in the first accident were the cause of the second accident? This court says yes, and for that reason, this decision is notable.
On December 1, 2005, plaintiff Edison Clavijo, a construction worker, allegedly sustained personal injuries to his right hand when the "power tool he was using got stuck in the wall and twisted and in turn twisted plaintiff's right arm." Plaintiff alleged that he was "unable to use both hands while drilling due to the fact that he was on a ladder instead of a scaffold." At the time of the accident, the owner of the work site was defendant Universal Baptist Church and the general contractor was Dellwood Development, LLC.
On December 8, 2005, Plaintiff allegedly had a second accident in which he sustained personal injuries when he was "unable to properly grip a steel beam and it dropped on his foot while off site and in the process of moving material to the construction site." Plaintiff alleged that he dropped the steel beam on his foot "due to the right hand injury suffered on December 1, 2005."
The December 8, 2005 accident occurred on different premises than the first accident.
The first two causes of action in Plaintiff's Complaint related to the December 1, 2005 accident; and the second two causes of action relate to the December 8, 2005 accident. Plaintiff alleges negligence and violation of Labor Law §§ 200, 240, and 241 with respect to both accidents.
"With respect to the December 8, 2005 accident, Defendants contend that they are entitled to summary judgment dismissal of all of Plaintiff's claims on the ground that the accident did not occur at the work site. To the extent that Plaintiff's allegations. .. allege that the December 8, 2005 accident was due to any negligence of Defendants or the violation of any Labor Law section by them on December 8, 2005, Plaintiff has withdrawn such allegations. Now, Plaintiff only alleges that "on December 8, 2005, due to the right hand injury suffered on December 1, 2005, plaintiff was unable to properly grip a steel beam and it dropped on his foot while off site."
"When a person is injured by the negligence of another and, despite the exercise of ordinary and reasonable diligence in the treatment of the injuries, the individual is involved in another accident because of the injuries sustained in the first accident, the tort-feasor in the first accident is also responsible for the subsequent injuries. (Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989].) The principle does not appear to have been applied to a case involving Labor Law liability. It is clear, however, from the seminal authority from which it derives that the principle is one of proximate cause. Added injuries may be included in the damage provided they arose out of the first injury or would not have happened but for the first injury and not due to the neglect or carelessness of the injured party. (Wagner v Mittendorf, 232 NY 481, 486 .) No reason is apparent for not applying the principle to a Labor Law § 200 case, where any liability for the first accident would be based upon common law negligence. The Court offers no opinion as to its applicability where liability is based upon Labor Law § 240(1) or § 241(6)."
"Here, Defendants fail to make any showing with respect to Plaintiff's allegation that the second accident was caused by the injuries Plaintiff sustained in the first accident. As such, they fail to demonstrate prima facie entitlement to summary judgment."
"Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's Amended Verified Complaint to the extent that Plaintiff asserts that the injuries sustained in the December 1, 2005 accident caused the December 8, 2005 accident is DENIED."
Comment: It is a very curious rule of law, in my opinion, that a defendant who is liable for a certain injury might be responsible for a subsequent injury which is caused by the first injury itself. The range of possible liability for a second accident thus seems limitless. So if, for example, a defendant negligently causes a person's blindness, then that defendant might be liable every time the blind plaintiff bumps into something, or decides to drive a car. The victim of the first injury surely has some kind of responsibility not to put himself in a position where his pre-existing injury could cause him to get hurt again -- doesn't he? It's a philosophical issue, for sure.
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