Construction is one of the most dangerous professions one can engage in. Accidents on construction sites happen with unfortunate frequency. The Occupational Safety and Health Administration (OSHA) estimates that some 65% of construction workers work on scaffolds or heights. Thus falling from a height represents one of the most common and dangerous accidents on a job site.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
Monday, April 27, 2009
Thursday, April 23, 2009
Sueing a municipality: Gorman and Prior Written Notice
The NY Court of Appeals recently limited a plaintiff’s ability to recover from a municipality for a sidewalk accident. Generally, before you can sue a municipality for a defect, that municipality must have prior notice in writing that the defect exists.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Monday, April 6, 2009
In New York City, a sidewalk is the responsibility of the owner of the abutting property. It is the private landowner who is responsible for making sure the sidewalk is free from defects and safe for pedestrians to walk upon.
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
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