THE ROGAK REPORT: 01 December 2003
- Note: There are 2 case reviews in today's Rogak Report. Scroll down
to read both.
WORKER PUTTING UP DRYWALL FOR HIS WIFE'S COMPANY HAS SOME LABOR LAW
Sikorski v. Burroughs Drive Apartments Inc. et al., 762 NYS2d 718
(4th Dept 2003)
Plaintiff was putting up drywall in a garage that was being
constructed by his wife Penny, doing business as third-party
defendant Ameri-Tec Associates. Plaintiff was standing on a scaffold
2 feet off the ground, holding a 4 by 8 sheet of drywall with one
hand and reaching for a hammer with the other, when a gust of wind
caught the drywall. Plaintiff lost his balance and stepped off the
scaffold and the drywall sheet struck him on the head. Defendants
moved for summary judgment on plaintiff's Labor Law 200, 240(1) and
241(6) claims, all of which were denied by Supreme Court, Erie County.
The Appellate Division held, first, that the Labor Law 200 claim
should have been dismissed. Any dangerous condition did not arise
from the negligence of the premises owner, but from the contractor's
methods, i.e., the plaintiff's own actions.
Second, the Labor Law 241(6) claim should have been dismissed.
Plaintiff alleged a violation of 12 NYCRR 23-1.8(c) which requires
the wearing of hard hats when working in an area where there is a
danger of being struck by falling objects. Here, plaintiff was
working at the same level as the drywall, so the regulation does not
apply and therefore there cannot be a 241(6) claim.
But plaintiff's Scaffold Law claim survives. Plaintiff raised an
issue of fact as to whether or not he was a "falling worker."
Although he was working just 2 feet above the ground, "the extent of
the elevation difference may not necessarily determine the existence
of an elevation related risk." The Court did rule that the drywall
was not a "falling object" because it was at the same level as
plaintiff. But if defendant is found liable for plaintiff's fall, it
may be liable for injuries caused by the drywall hitting him.
Finally, the third-party action against Ameri-Tec was dismissed
because plaintiff was an employee of Ameri-Tec, and although some
testimony disputed this (plaintiff referred to himself as an
independent contractor), he did collect workers comp from Ameri-Tec's
policy; thus America-Tec is not liable for common law contribution or
AFTER CAR CRASH, ALL OCCUPANTS FOUND IN BACK SEAT; JURY'S FINDING
THAT ONE WAS THE DRIVER IS ALLOWED TO STAND
Shea v. Mazza et al., 762 NYS2d 221 (4th Dept 2003)
In this consolidation of 4 lawsuits, Robert H. Mazza was involved in
a multi-vehicle accident while driving with Jeffrey C. McFall in a
vehicle owned by McFall. When other motorists stopped to provide
assistance, they discovered Mazza and McFall in the back seat of the
vehicle. No eyewitness could place Mazza or McFall in the driver's
seat before or after the accident, and the other evidence regarding
who was driving was conflicting. The Cattaraugus County jury
returned a verdict finding that Mazza was the driver at the time of
the accident. The trial judge reversed, and dismissed the claims
against him. The Appellate Division reversed. "We conclude that the
jury verdict must be reinstated. The sole issue at trial was the
identity of the driver at the time of the accident. Given the
conflicting testimony on that issue, we conclude that the jury
verdict is supported by sufficient evidence, i.e., there is a valid
line of reasoning and permissible inferences that could lead rational
persons to the conclusion reached by the jury based on the evidence
at trial, and thus the court erred in granting Mazza judgment
notwithstanding the verdict."