May 2017 Summing Up
In This Issue
 

Speyer and Renda Win Appeal, Securing Dismissal of Products Liability Action

Tom Speyer and Katie Renda Buffalo, NY - April 2017 - In Pacy v. Cowen Holdings, Inc., et al, the plaintiff suffered injuries to her arm while using a commercial washing machine manufactured by our client, Alliance Laundry Systems. Specifically, the plaintiff claimed that while attempting to remove a load of towels from the washer, her right arm became entangled and twisted.

The plaintiff alleged that the washing machine was defectively designed based upon a theory that the washer door was able to be opened while the drum inside the washing machine was still spinning. Firm member Thomas J. Speyer and senior associate Katie Renda initially secured an order for summary judgment from Honorable Paul B. Wojtaszek on the grounds that the machine was not defectively designed and the case was dismissed.

On appeal, the Fourth Department affirmed the decision of Justice Wojtaszek, holding that the defense met its burden by establishing that the washing machine at issue was a safe product because it was equipped with two safety devices. Plaintiff was unable to establish that industry standards required the additional safety device promulgated by the plaintiff's expert and, as such, plaintiff was unable to raise a question of fact.

The Fourth Department also addressed plaintiff's claims grounded in failure to warn, holding that the plaintiff's deposition testimony established that she was aware of the danger of the moving drum inside the washing machine. Alliance therefore had no duty to warn the plaintiff of a danger of which she was already aware.

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Court of Appeals Holds Competing Expert Affidavits Raise a Question of Fact Precluding Summary Judgment in Favor of Plaintiff on Labor Law §240(1) Claim

In O'Brien v. Port Auth. of N.Y. & N.J., 2017 WL 1166795 (2017), the plaintiff, who was an employee of a subcontractor at the 1 World Trade Center construction site, commenced a Labor Law action against the owner and general contractor.

On the day of the accident, plaintiff was operating two welding machines located at the ground level of the job site. Around 8:00 p.m., the plaintiff made his way down to his employer's shanty, which was one level below ground, to get a rain jacket. In order to do so, the plaintiff utilized a temporary exterior staircase, also known as a temporary scaffold. According to the plaintiff, the metal staircase was wet due to exposure to the rain. As a result, his foot slipped off the tread of the top step of the staircase causing him to fall. The plaintiff also alleged that he could not hold onto the staircase's handrail because it was wet.

Ultimately, the plaintiff sought partial summary judgment on his claims pursuant to Labor Law §240(1) and §241(6). In support, the plaintiff submitted an expert affidavit from Walter Konon, a professional engineer and licensed building inspector. The plaintiff's expert, however, did not inspect the stairs but based his opinion on the photographs included in the record.

Konon opined that the stairs were "not in compliance with good and accepted standards of construction site safety and practice." Konon also noted that the stairs were not in compliance with a provision of OSHA which required that slippery conditions on stairways be eliminated before use.

According to Konon, the stairs revealed signs of longstanding wear and tear and the only anti-slip measures in place at the time of the plaintiff's fall were "small round protruding [metal] nubs." Konon concluded that the stairs were not in compliance with accepted industry standards; and therefore, created a dangerous condition.

In response, defendants submitted two affidavits from safety expert, David Glabe. Like Konon, Glabe did not physically inspect the stairs but based his opinions on photographs. According to Glabe, the stairs were "designed and manufactured as to provide traction acceptable within industry standards and practice in times of inclement weather." Glabe found no evidence that the steel treads had been worn down by foot traffic. The stairs provided both perforated holes allowing rain to pass through and metal nubs for traction. According to Glabe, these anti-slip measures were sufficient.

In Glabe's second affidavit, he described an inspection of a staircase of the same make and model as to the one at issue. As a result of the inspection, Glabe concluded there was adequate space on the tread surface of the steps allowing a person to avoid contact with the "nose or front of the step" when descending.

Finally, Glabe opined that it was impossible for plaintiff's expert to conclude from the photographs that the treads on the stairs had been worn down.

The trial court denied the cross-motions on the issue of Labor Law §240(1) liability finding issues of fact existed as to whether the temporary staircase provided proper protection. The lower court did, however, grant plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law §241(6).

The Appellate Division modified the order of the trial court and granted the plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law §240(1) and denied that portion of the plaintiff's motion as to Labor Law §241(6). Although the Appellate Division noted that the record contained conflicting expert affidavits, it was undisputed that the staircase was a safety device and was either inadequate or had malfunctioned at the time of the plaintiff's fall.

Notably, the Appellate Division granted the defendants leave to appeal to the Court of Appeals by certified question, asking "Was the order of the Supreme Court, as modified by this Court, properly made?" In a 4-3 decision, the Court of Appeals answered in the negative.

The Court of Appeals noted that the mere fact "a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1)." The Court of Appeals held that this case was distinguishable from prior cases involving ladders and scaffolds because there were "questions of fact as to whether the staircase provided adequate protection."

The Court of Appeals noted that the defendants' expert opined that the staircase at issue was specifically designed for both indoor and outdoor use, and provided the necessary traction for inclement weather. The defendants' expert added that additional anti-slip measures were not necessary and disputed the assertions made by plaintiff's expert inasmuch it was alleged that the treads were worn down and the staircase was too steep.

Although the dissent relied on Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985), the majority here noted that the holding in Zimmer was "in light of the uncontroverted fact that no safety devices were provided at the worksite, it was error to submit to the jury for their resolution the conflicting expert option as to what safety devices, if any" should have been provided.

Ultimately, the Court of Appeals held that the record here included conflicting expert affidavits as to the adequacy of the safety device provided. Moreover, the experts based their opinions on whether the defendants had complied with industry standards. The Court of Appeals stated, "[w]e agree that such compliance would not, in itself, establish the adequacy of safety device within the meaning of Labor Law §240(1), but we do not read defendants' expert's opinion to be so limited.

The Court of Appeals concluded that the plaintiff's motion for partial summary judgment on the issue of Labor Law §240(1) should have been denied.


Summary Judgment Granted in Favor of Defendant Manufacturer Where Admissible Proof Demonstrating the Product at Issue was Safe and Complied with Industry Standards

In Pacy v. Cowen Holdings, Inc., et al., 2017 WL 11867733 (4th Dept. 2017), a matter handled by Thomas J. Speyer and Katie Renda of our office, the plaintiff's infant daughter sustained injuries to her arm while attempting to unload towels from a commercial washing machine manufactured by defendant Alliance Laundry Systems. Alliance moved for summary judgment arguing that the alleged defects were not the proximate cause of the infant plaintiff's injuries and the washing machine at issue was not defectively designed. The trial court granted summary judgment in favor of Alliance and was affirmed by the Fourth Department.

In its decision, the Fourth Department noted that in order for a defendant manufacturer to meet its prima facie burden on summary judgment, it must establish that the product at issue was safe and complied with the applicable industry standards.

In support of summary judgment, Alliance demonstrated that the washing machine was in fact safe because it was equipped with a door interlock and microswitch. These devices automatically deactivated the spinning of the washing machine drum when the door was in the open position.

In opposition, the Fourth Department recognized that plaintiff failed to raise an issue of fact "by establishing that the product was not reasonably safe and that it was feasible to design the product in a safer manner." The Fourth Department held that the plaintiff's expert failed to identify a suitable modification to the washing machine, which if made, could have allowed the washing machine drum to slow and stop instantaneously once the door was opened. Additionally, the Court held that plaintiff's expert failed to identify any regulations or industry standards requiring such a mechanism.

With respect to plaintiff's failure to warn theory the Court noted that manufacturers have no duty to warn against those dangers "that are readily apparent as a matter of common sense." The Fourth Department rationalized that users of a product who are aware of an inherent danger through their own experience "need not be warned of that danger."

As a result, the Fourth Department held that Alliance submitted proof demonstrating that sufficient warnings had been placed on the washing machine and it was safe. During the employee's deposition, she acknowledged that she was aware of the danger of the moving drum. This was due to the fact she would check to see if the drum was moving before reaching inside.


Plaintiff Failed to Establish his Entitlement to Partial Summary Judgment on the Issue of Liability Pursuant to New York Labor Law §240(1)

In Kopasz v. City of Buffalo, et al., 2017 WL 1116324 (4th Dept. 2017), plaintiff moved for partial summary judgment on the issue of liability pursuant to New York Labor Law §240(1).

The plaintiff allegedly sustained injuries as he stepped off from a ladder onto a Baker scaffold and struck his head on an overhead beam causing him to fall backwards to the floor. The trial court granted plaintiff's motion for partial summary judgment and denied the defendant's cross-motion for summary judgment. The defendant appealed the decision of the lower court.

The Fourth Department, however, was not persuaded by plaintiff's proof. The Court held that the plaintiff failed to establish his entitlement to partial summary judgment because an issue of fact precluded summary disposition. Specifically, the Fourth Department concluded that an issue of fact existed as to whether the scaffold failed to provide proper protection "because it was not properly placed, thereby precipitating plaintiff's fall or whether plaintiff simply lost his balance and fell."

The Appellate Division also noted that the plaintiff failed to demonstrate that the lack of safety railings on the scaffold, as required by 12 N.Y.C.R.R. 23-5.18(b), was a sufficient basis for a finding of liability against the defendant. The Court noted whether the presence of safety railings would have prevented the plaintiff's fall merely raised a question of fact.

Additionally, the Fourth Department affirmed the denial of summary judgment in favor of the defendant. The defendant argued that the plaintiff's own conduct in using the scaffold was the sole proximate cause of his injuries. The Court held that the defendant "failed to eliminate any issue of fact that plaintiff 'chose for no good reason' to use the scaffold at issue when he knew that one of the wheels did not lock."


Claimant Not Barred From Serving Late Notice of Claim Where Respondent Failed to Make a Particularized Evidentiary Showing of Prejudice

In the Matter of Diegelman v. City of Buffalo, 2017 WL 1115225 (4th Dept. 2017), the claimant alleged to have sustained injuries during his employment with the City of Buffalo Police Department due to exposure to asbestos. The trial court granted claimant's application for leave to serve a late notice of claim. Initially, the Fourth Department reversed the lower court's order on the ground that the claimant's claim was "patently without merit" as it was barred by General Municipal Law §207-c.

Subsequently, the claimant was granted leave to appeal to the Court of Appeals. The Court of Appeals concluded that the claimant's case was not barred by General Municipal Law §207-c. Therefore, the Court of Appeals reversed the order of the Appellate court and remitted the case to the Fourth Department.

Upon remittitur, and with the direction from the Court of Appeals that General Municipal Law did not bar the claim, the Fourth Department determined that the trial court did not abuse its discretion in granting leave to serve a late notice of claim. In reaching this determination, the Fourth Department noted that the court was required to "consider all relevant facts and circumstances, including the nonexhaustive list of factors" enumerated in General Municipal Law §50-e(5). Moreover, the mere "presence of absence" of one of these factors is not determinative.

According to the Fourth Department, the three main factors to consider are: "(1) whether the claimant has shown a reasonable excuse for the delay; (2) whether the respondents had actual knowledge of the facts surrounding the claim within 90 days of its accrual or within a reasonable time thereafter; and (3) whether the delay would cause substantial prejudice to the municipality."

In this case, even if the claimant failed to demonstrate a reasonable excuse for the delay, the Fourth Department noted that the remaining factors support the court's exercise of discretion in grating the application. The Appellate Division went one step further and held that, even though the City did not obtain knowledge of the facts of the underlying claim until about nine months after the expiration of the 90-day period, for the Court, this was reasonable because the City did not contend, "that there has been any subsequent change in the condition of the [premises]" hindering its investigation and defense of the claim.

Lastly, the Fourth Department held that the claimant made a sufficient showing that the late notice of claim would not substantially prejudice the City. In response, the City failed to make a "particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed."


Plaintiff Failed to Raise a Triable Issue of Fact Relative to the Existence of a Dangerous Condition

In Langgood v. Carrols, LLC, 2017 WL 1186641 (4th Dept. 2017), plaintiff commenced a personal injury action for injuries he allegedly sustained after he tripped and fell on a rug located in the vestibule of the defendant-owner's restaurant. In Supreme Court, the defendant moved for summary judgment but its motion was denied.

Nonetheless, the Fourth Department reversed the lower court and granted the defendant's motion for summary judgment dismissing the plaintiff's complaint.

The Court noted, however, "whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury..., summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit evidence that a particular condition is actually defective or dangerous."

In this case, the Appellate Division held that the defendant made a prima facie showing entitling it to summary judgment whereby it submitted evidence that demonstrated that the placement of the rug in the vestibule of the restaurant did not constitute a dangerous condition.

Despite the fact the plaintiff testified that he fell when his "right foot went underneath something" and that he saw the rug "kind of flapped over", the Fourth Department held that the defendant met its burden. The evidence submitted demonstrated that the rug was flush to the floor and that other patrons of the restaurant traversed over the rug without issue.

Therefore, the Fourth Department held that the plaintiff was caused to fall, not because of a ripple in the rug or because a portion of the rug was raised, but the fall was due to the fact the plaintiff's own foot picked up the rug.

With that being said, the defendant failed to establish that the plaintiff's inattention was the sole proximate cause of his injuries. The Court, however, held that any alleged defect created by the placement of the rug in the vestibule or any alleged height differential was "too trivial to be actionable."

The Fourth Department noted that the test is not "whether a defect is capable of catching a pedestrian's shoe" but the correct test is "whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances."

Based upon this test, the Fourth Department noted that the videotape of the area where the accident occurred and a photograph of the rug demonstrated no irregularity with the rug and that the area was unobstructed. Therefore, the Fourth Department reversed the lower court and dismissed the complaint.


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