A recent decision of the Court of Appeals holds that an alleged assault committed by an employee was considered an Aaccident@ and hence covered under the insured=s liability policy.

In RJC Realty Holding Corp. v. Republic Franklin Insurance Co., 2 N.Y.3d 158, 777 N.Y.S.2d 4 (April 1, 2004), a customer sued a beauty parlor (the insured) for a sexual assault allegedly committed by one of its masseurs.  The Court of Appeals, using the reasoning from its 2000 Agoado decision (95 N.Y.2d 141, 711 N.Y.S.2d 141), held that the assault had to be gauged from the insured=s standpoint and not the assailant=s.  Since the beauty parlor in RJC Realty did not intend the assault from its own viewpoint, the assault was an Aaccident@ and therefore was covered under its liability policy.

Eight months ago, the Court of Appeals attempted to clarify the so called AScaffold@ Law, i.e. Labor Law '240.  The Blake v. Neighborhood Housing Services of New York City, Inc.  decision (1 N.Y.3d 280, 771 N.Y.S.2d 484 [2003]), as discussed in our February 2004 issue of ASumming Up@, stated that while Labor Law '240 should be construed liberally, it is not a catchall for every elevation related action.  In the Blake decision, the Court of Appeals specifically declined to expand '240 Liability to cover accidents where there are no safety violations and the accident was purely the fault of the plaintiff.  In Blake, the plaintiff failed to secure the rungs of an extension ladder.  The ladder collapsed.

In Gilbert v. Albany Medical Center, N.Y. Slip Op. 05824, 779 N.Y.S.2d 653, (3^rd Dept., July 8, 2004), the plaintiff, a worker who was standing on a ladder and removing asbestos from a pipe, was injured when the ladder slipped and collapsed.  The plaintiff moved for partial summary judgment on his Labor Law '240 cause of action.  The trial court denied his motion and plaintiff appealed.

The 3^rd Department, in considering the precedence established by Blake, was divided on the issue of whether the slipperiness of the floor could appropriately be considered a factor which compromised safety unrelated to the plaintiff=s conduct.  The majority held that while under the Blake decision, if a plaintiff=s conduct alone causes an accident, there is no liability under Labor Law '240; if the accident was attributable in any degree to a deficiency other than the neglect of the employee, the Acomparative negligence@ of the employee is not a defense to Labor Law '240.

The Gilbert Court found that evidence showed that the ladder was placed on a slippery surface.  This created a prima facie showing of a Labor Law '240 violation.  The majority concluded that this violation alone resulted in strict liability, regardless of the plaintiff=s actions.  The 3^rd Department overturned the trial court=s order and granted the plaintiff=s motion for partial summary judgment on his Labor Law '240 cause of action.