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THE ROGAK REPORT: 01 December 2003

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  • therogakreport
    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 CLAIMS
    Message 1 of 1 , Nov 30, 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
      CLAIMS

      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
      indemnity.

      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."
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