Products Liability: Waterman v. CNH America, LLC, et. al. (N.Y. App. Div., 4th Dept.)

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by Maurice L. Sykes, Esq. and Henry A. Zomerfeld, Esq.


In Waterman, plaintiff was a municipal employee working to reinforce a guardrail near a road.  Plaintiff’s colleagues were using an excavator bucket to pound 12’ rail irons into the ground.  Plaintiff was standing under the 725-pound excavator bucket when he was allegedly struck by the bucket, sustaining injuries.


Plaintiff brought suit alleging, in part, that defendants owed plaintiff a duty to warn of the danger that allegedly caused the accident.  Defendants moved for partial summary judgment on the grounds that they owed plaintiff no duty of care to warn of the open and obvious danger of standing underneath the 725-pound excavator bucket.  Defendants also argued that even if the condition was not open and obvious, the warnings in the operator’s manual were sufficient to make plaintiff aware of the danger.


On July 7, 2015, in a 41-page decision, the Supreme Court, Erie County, granted defendants’ motions for summary judgment, reasoning that they had no duty to warn of an open and obvious common-sense risk, and that plaintiff failed to demonstrate any genuine issue of material fact to defeat the motions.  The Court found there was nothing lacking or insufficient about the warnings in the operator’s manual.  The Court also noted (as argued by defendants) that two of plaintiff’s colleagues had walked away from the area where the repair was taking place out of concern for their own safety, which the Court took to be an acknowledgment of the danger of standing underneath the excavator bucket.  Plaintiff appealed.


On May 5, 2017, the Fourth Department unanimously affirmed the Supreme Court decision granting partial summary judgment in favor of defendants.

Labor Law 240: Weitzel v. State of New York (N.Y. Sup. Ct., Erie Co.)

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by Richard C. Brister, Esq.


In Weitzel, plaintiff was allegedly injured in the course of his employment at a highway construction project to renovate a bridge on the Thruway in Hamburg, New York.  The construction area was contained within a heavy-duty tarp system, or containment area.  On the date of the accident, plaintiff allegedly walked into the containment area wearing a safety harness, but once inside the containment area and hidden from view, removed the safety harness before climbing to a height (i.e., onto a 2’ aluminum plank placed between the bridge pier and the wing of a v-deck truck set up under the bridge), and then began work blasting the bridge framework.  It was allegedly during this blasting work performed without a safety harness that plaintiff fell approximately 15 feet and sustained injuries.


Plaintiff’s motion alleged the plank from which he fell was not set up properly because it was placed over a tarp and was not properly tied off.  Plaintiff also alleged defendants failed to provide safety railings on both sides of the plank as required by the Labor Law.  In opposition, defendants argued that plaintiff himself placed the plank on the tarp and tied it off.  Defendants also argued that if plaintiff had worn his safety harness and used available bridge clamps, there were numerous tie-off points available.  Defendants also provided expert and testimonial evidence that railings along the sides of the plank would have rendered the work practically impossible and more dangerous.  Defendants also argued that plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and that plaintiff was a recalcitrant worker because he removed the safety harness without explanation and despite being told numerous times to wear it.  Defendants argued that the court must take defendants’ evidence as true and indulge all reasonable inferences in their favor as non-movants.


On January 12, 2017, the Court denied plaintiff’s motion for summary judgment under Labor Law section 240.  The Court found issues of fact as to (1) whether plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and (2) whether plaintiff was a recalcitrant worker.

Insurance Coverage: Big Change for Additional Insured Provisions “Caused By” the Court of Appeals

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by Adam R. Durst, Esq. and Richard A. Galbo, Esq.


In Burlington, the New York City Transit Authority (NYCTA) and MTA New York City (MTA) sought AI coverage in connection with an underlying bodily injury action under a liability policy issued by The Burlington Insurance Company (Burlington) to Breaking Solutions, Inc. (BSI).  The Burlington AI endorsement provided coverage only for liability for bodily injury “caused, in whole or in part” by the “acts or omissions” of BSI.


NYCTA had contracted with BSI to perform tunnel excavation work on a New York City subway.  The NYCTA-BSI contract obligated BSI to procure liability insurance naming the NYCTA, MTA, and New York City (the City) as AIs.   During the project, a BSI machine touched a live electrical cable buried in concrete, resulting in an explosion.  An NYCTA employee was injured when he fell from an elevated platform as he tried to avoid the explosion.


The NYCTA employee and his wife commenced suit against BSI and the City, alleging negligence and violations of Labor Law.  The City impleaded the NYCTA and MTA, asserting indemnification and contribution claims.   The NYCTA tendered its defense to Burlington as an AI under the BSI policy.  Burlington initially accepted the defense subject to a reservation of rights based on the NYCTA’s qualification as an AI, but later disclaimed coverage based on the NYCTA’s lack of AI status after it was determined that the NYCTA failed to identify and mark the electric cable and turn off the power and was therefore solely at fault.  Since BSI could not have known about the location of the cable or the fact that it was electrified, the claims against BSI were eventually dismissed with prejudice.


Burlington commenced a coverage action against the NYCTA and MTA seeking a declaration that it did not owe them coverage as AIs since the underlying accident was not “caused, in whole or in part by” BSI’s “acts or omissions.”  The Supreme Court, New York County, granted Burlington’s motion for summary judgment and concluded that the NYCTA and MTA were not AIs because the Burlington policy limited AI coverage to instances in which BSI was negligent.  The NYCTA and MTA appealed.  The Appellate Division, First Department, reversed the Supreme Court’s decision.   In doing so, the First Department read the “caused by” language to mean the same as the “arising out of” language found in similar AI endorsements.  The First Department therefore applied a “but for” causation test and held that because “the act of triggering the explosion . . . was a cause of [the employee’s] injury,” the NYCTA and MTA were entitled to a defense and indemnification from Burlington as a matter of law, consistent with then-controlling precedent.  The Court of Appeals granted Burlington leave to appeal.


The Court of Appeals reversed the First Department’s decision.  The Court rejected the use of the “but for” causation test and found that “where an insurance policy is restricted to liability for any bodily injury ‘caused, in whole or in part’ by the ‘acts or omissions’ of the named insured, the coverage applies to injury proximately caused by the named insured.”  Interestingly, the Court relied on numerous federal and out-of-state decisions in reaching its conclusion, perhaps inviting future references to decisions from other jurisdictions where the weight of authority has fallen to a particular interpretation of policy language.  The Court explicitly rejected the NYCTA’s and MTA’s invitation to adopt the First Department’s conclusion that the “caused by” language does not materially differ from the phrase “arising out of,” because “arising out of” was not used in the Burlington policy and is not the functional equivalent of “proximately caused by” but instead has been interpreted to mean that there is “but for” causation.   The Court explained that “not all ‘but for’ causes result in liability,” whereas “‘proximate cause’ refers to a ‘legal cause’ to which the Court has assigned liability,” and that for proximate cause, “the chain of causation must have an endpoint in order ‘to place manageable limits upon the liability that flows from negligent conduct.’”  The Court reasoned that since the Burlington AI provision extends AI coverage “only with respect to liability,” the “‘caused, in whole or in part, by’ language necessarily limits coverage for damages resulting from [the named insured’s] negligence or some other actionable ‘act or omission.’”  Since BSI was adjudicated not to have been at fault in the underlying action, the Court held the NYCTA and MTA did not qualify as AIs under the Burlington policy.


Only Justice Fahey, dissenting, opted to apply the “but for” causation test instead of proximate cause, reasoning, in short, that the provision at issue was ambiguous and must be read against the drafter.



The Court of Appeals’ decision in Burlington is sure to affect many decisions across New York State with respect to a putative AI’s entitlement to indemnification, which it appears will first require an allocation of liability in the underlying action.



However, since the Court did not engage in an analysis as to how its decision affects an insurer’s duty to defend, it is unclear how this decision will be applied in situations where, for example, the claimant is the named insured’s employee, since often the complaint will not identify the employer or contain specific allegations that the employer was the proximate cause of the claimant’s injuries.


A question also exists as to what exactly the Court meant by “some other actionable ‘act or omission’” or “actionable deed.”   It is also unclear how courts in New York will use Burlington to interpret endorsements commonly found in insurers’ policies that may not say “in whole or in part” or may only pertain to liability caused by the named insured’s “ongoing operations” instead of its “acts or omissions.”


What can be said, however, is the Court’s decision in Burlington represents a significant jurisprudential development in the context of AI coverage in New York that should be a tool in any insurance coverage litigator’s kit.


Labor Law: Court of Appeals Latest Attempt to Rein in Section 240(1) Liability

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by Richard A. Galbo, Esq.


On March 30, 2017, the Court of Appeals issued a 4-3 decision in O’Brien v. Port Auth. of N.Y. & N.J., 2017 N.Y. Slip Op. 02466, 2017 WL 1166795.  Considering the three new Judges appointed to the Court in the last year, and despite a strident dissent by Judge Rivera, this decision may reflect a significant shift under section 240 of the New York Labor Law.  The decision could have the effect of limiting liability under section 240, or at the very least curtailing summary judgment awards.


The plaintiff was working at ground level on a rainy day.  At the time of the accident, he was heading to his employer’s shanty to get his rain jacket.  To do so, he used a temporary exterior metal staircase (also referred to as a temporary scaffold), which was wet due to rain.  As the plaintiff stepped off the tread of the top step, his foot slipped and he fell down the stairs, sustaining injury.  He was unable to prevent the fall because his hand slipped off the rail, which was also wet.


Plaintiff’s motion for summary judgment included an expert affidavit opining that (1) the staircase was “not in compliance with good and accepted standards of construction site safety and practice” because the stairs were “smaller, narrower and steeper than typical stairs,” making it difficult to maintain proper footing; (2) the stairs showed signs of wear; and (3) the anti-slip measures (small protruding nubs) were inadequate as they afforded limited slip protection and were otherwise worn.  The defendants countered with their own expert who opined that (1) the stairs were “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather”; (2) the use of perforated holes to allow water to pass and raised nubs to provide traction were sufficient anti-slip measures; (3) the tread depth met good and acceptable construction industry standards; and (4) there was no evidence the treads were worn.  The trial Court found issues of fact under section 240(1).  While the Appellate Division acknowledged the conflicting expert opinions, it found the plaintiff entitled to summary judgment because the plaintiff fell, such that the staircase as a safety device therefore either malfunctioned or was inadequate to protect the plaintiff against the risk of falling.  The Appellate Division granted leave to appeal, asking the Court of Appeals to review its decision granting summary judgment to the plaintiff on his section 240(1) claim.


The Court of Appeals reversed, holding that the conflicting expert opinions raised an issue of fact as to whether the staircase provided adequate protection.  The Court went on to hold that to the extent the Appellate Division’s opinion can be read to say a statutory violation occurred merely because the plaintiff fell down the stairs, this does not provide an accurate statement of the law.


However, this is precisely the way courts have interpreted section 240 – i.e., rarely allowing a jury to decide whether a safety device was inadequate, and considering a plaintiff’s injury prima facie evidence of inadequacy.  As such, for the dissenting Judges, liability was undisputed because the stairway is a safety device that failed to adequately protect the plaintiff from the risk of slipping and that failure was a proximate cause of the plaintiff’s injuries.  However, the Court’s majority now disputes this interpretation of section 240, and states that a presumption that a device was not good enough to provide proper protection is only valid in cases where the scaffold or ladder collapses or malfunctions for no apparent reason.  Where this is not the case, then liability under section 240 will become an issue of fact for the jury and will be subject to the jury weighing competing expert opinions regarding the adequacy of the safety device to afford proper protection, even where the plaintiff is injured using the device in its intended manner.


The Court leaves for future interpretation what factors a jury will be allowed to consider as “proper protection” by stating that compliance with industry standards would not, in itself, establish the adequacy of a safety device under section 240.  The Court also read the defendants’ expert opinion as stating more than compliance with industry standards but did not elaborate on the “more,” leaving the question of what proof will be sufficient to defeat summary judgment and place the matter before a jury, as well as the question of what will be sufficient evidence of proper protection to sustain a finding of no liability.


The decision appears to rewrite the rules for the courts by curtailing the circumstance in which summary judgment is granted, putting plaintiffs to their proof before a jury and allowing a battle of experts to decide liability, thereby relieving some of the strain of strict liability on defendants. 


While trial will remain all-or-nothing, without a liability finding before trial more cases are likely to settle for sums less than under the damage-only regime.  Also, subjecting liability to expert proof will require the introduction of all of the facts and circumstances of the accident into trial, and even though the plaintiff’s culpable conduct will not be a defense, the plaintiff’s conduct could in any event influence the jury’s liability finding and/or damage assessment.


This decision represents the most significant jurisprudential development under the Labor Law since the introduction of the defenses of “recalcitrant worker” and “sole proximate cause.”  It is surely a favorable development for construction industry defendants – a fact not lost on the three dissenting Judges who argue at length that the decision misapprehends the statute’s legislative intent to protect workers under a strict liability standard that allows for a liability determination without reference to industry custom or practice.

Labor Law 240: Smith v. Burns (N.Y. Sup. Ct., Broome Co.)

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by Richard C. Brister, Esq.


In Smith, plaintiff was allegedly injured in the course of his employment at a project to build a two-level deck at a new restaurant being constructed in Binghamton, New York.  On the accident date, plaintiff was allegedly using an 8’ stepladder to install a support post under the deck when the ladder collapsed, causing plaintiff to fall and sustain injuries.


Plaintiff’s motion alleged he was provided the 8’ stepladder and that his accident was caused by the defective condition of the ladder and the way it was set up under the deck.  In opposition, defendants submitted evidence that plaintiff was actually provided a 12’ stepladder that had on three prior occasions been successfully secured under the deck for similar work, and that plaintiff actually accessed that 12’ stepladder just prior to the accident, but that plaintiff ultimately disregarded the 12’ ladder and retrieved the 8’ ladder to use instead.  Defendants argued that plaintiff’s motion ignored the the provision and condition of the 12’ ladder, and that the court must take defendants’ evidence as true and indulge all reasonable inferences in their favor as non-movants.


On April 10, 2017, the Court denied plaintiff’s motion for summary judgment under Labor Law section 240.  The Court found issues of fact as to (1) which ladder the plaintiff was given to use, and (2) whether plaintiff’s conduct (i.e., in retrieving the unsafe 8’ ladder for his use where a safe 12’ ladder had been immediately available to him) was the sole proximate cause of the accident.  The Court also denied plaintiff’s motion for summary judgment on his claims for common law negligence and for violation of Labor Law sections 241(6) and 200, and denied plaintiff’s wife’s derivative claim.

Insurance Coverage: Northfield Ins. Co. v. Midtown Restorations LLC, et al. (N.Y. App. Div., 1st Dept.)

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by Judith Treger Shelton, Esq. and Adam R. Durst, Esq.


In Midtown, the plaintiff insurer sought a declaration as to its obligations under a general liability policy in connection with an underlying claim for property damage allegedly caused by the insured’s waterproofing operations.  The policy contained a classification limitation endorsement stating coverage “applies to ‘bodily injury’ and ‘property damage’ caused by only those operations which are classified and shown on the [declarations], its endorsements, and supplements.”  The declarations listed the following operations: “Contractors – subcontracted work – in connection with building construction, reconstruction, repair or erection – one or two family dwellings,” “Dry Wall or Wallboard Installation,” “Painting – exterior,” and “Painting – interior.”


The insured and underlying claimant property owner were both named as defendants in the coverage action.  The insured defaulted.  The insurer moved for summary judgment, arguing that the insured’s waterproofing operations did not fall within any of the listed classifications and therefore fell outside the scope of coverage of the policy.  The underlying claimant argued in opposition that the insured’s operations fell within the “Contractors – subcontracted work” classification because the claimant had “contracted with” the insured to perform the work.  In its reply, the insurer pointed out that the First Department had rejected this exact argument in a decision published seven days before the claimant filed its opposition.  At oral argument on May 16, 2016, the Supreme Court, New York County – sua sponte and without addressing the claimant’s argument – found a question of fact as to whether “waterproofing” fell within the “Painting – exterior” or “Painting – interior” classifications listed in the policy declarations because of the method by which the waterproofing product was applied (i.e., rolled on).


On April 4, 2017, the First Department rejected the Supreme Court’s reasoning, finding the policy’s classification limitation endorsement limits the scope of coverage to four classifications, none of which encompass waterproofing, thereby precluding coverage under the policy.

Contractual Indemnification: Winters v. Uniland Devpt. Corp., et al. (N.Y. Sup. Ct., Erie Co.)

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by Melissa A. Foti, Esq.


In Winters, plaintiff was allegedly electrocuted in the course of performing electrical work at a project to renovate an office in Amherst, New York.  Plaintiff commenced suit against the owner, Uniland, asserting claims for negligence and violations of Labor Law sections 200, 240(1), and 241(6).  The owner then commenced a third-party action against plaintiff’s employer, J&N Services, asserting claims for common law indemnification and contribution, contractual indemnification, and breach of contract/failure to procure insurance.  Prior to motion practice, plaintiff withdrew his Labor Law section 240 claim, leaving only claims for common law negligence and for violations of Labor Law sections 200 and 241(6).


Uniland moved for summary judgment against plaintiff seeking dismissal of all causes of action.  Uniland also moved for summary judgment on its claims against J&N for defense and indemnification.  These claims relied upon an indemnification provision contained in a “purchase order” between Uniland and J&N that was issued and signed after the accident and after the work was complete.  In opposition to the motion, J&N argued it was immunized from third-party liability for common-law indemnification or contribution because plaintiff did not sustain a grave injury.  J&N further argued that Uniland’s contractual indemnification claim must fail because there was no written contract signed prior to the loss; i.e., because contractual indemnification is only permitted where there is a written contract entered into prior to the accident expressly agreeing to indemnify for the type of loss sustained, and because an indemnification agreement cannot apply retroactively to injuries sustained by an employee in an accident that occurred prior to execution of the agreement unless that agreement specifically states it is to be applied retroactively (which the purchase order in this case did not).  Notwithstanding the fact that the purchase order post-dated the accident and work at issue, Uniland argued that J&N was its longtime partner and that the typical pattern and practice of conduct between Uniland and J&N (which predated the accident) was for J&N to provide Uniland with information concerning the job cost and a list of the work that was already completed, and for Uniland to then prepare a purchase order and provide it to J&N so that J&N could be paid.  Uniland argued that this pattern and practice established the parties intended to be bound and evidenced a valid and enforceable contractual indemnification claim.


On March 21, 2017, the Supreme Court, Erie County, dismissed all of plaintiff’s causes of action against Uniland, ruling that plaintiff was injured performing the very work he was hired to perform, that the facts did not support a claim that he was injured because of a defective condition on the premises, and that the claimed violations of Labor Law section 241(6) regulations were either not specific enough or that the cited regulations were inapplicable to the facts of the case.  The Court also denied Uniland’s motion against J&N, finding the evidence was undisputed that there was no signed contract between Uniland until several weeks after the accident and that Uniland failed to provide “persuasive authority” for the proposition that the “custom and practice” of the parties can create an enforceable contract with explicit terms for defense and indemnification.  The Court also ruled that the dismissal of the primary action rendered the third-party action moot.

Premises Liability: Slattery v. Tops Markets, LLC (N.Y. App. Div., 4th Dept.)

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by Melissa A. Foti, Esq.


In Slattery, the decedent plaintiff allegedly tripped and fell on a rug that had been laid flat over a “recessed mat system” at the entrance to a Tops Markets grocery store. Plaintiff’s estate sued Tops, alleging the rug and its placement constituted a dangerous and defective condition.
Tops moved for summary judgment, arguing plaintiff tripped because plaintiff’s foot had “picked up the edge of the rug,” not because the rug was dangerous or defective. Tops submitted evidence including photographs of the rug, video of the accident, and plaintiff’s deposition testimony stating he had not seen anything wrong with the rug before the accident. In opposition, plaintiff submitted an expert affidavit opining that the rug was “not designed to be used over another carpet” and that its placement over the recessed mat system had caused a tripping hazard. The Supreme Court, Erie County, denied the motion, finding an issue of fact. Tops appealed.
On February 10, 2017, the Fourth Department unanimously reversed. While whether a condition is dangerous or defective is generally a question of fact for a jury, the Court held that summary judgment may nevertheless be appropriate where the plaintiff fails to submit any evidence that the condition is actually dangerous or defective. Based on the evidence submitted by Tops, the Court found the rug and its placement were not inherently dangerous. The video suggested the rug had not slipped, and that plaintiff simply tripped over the front edge of the rug. The Court agreed with Tops that plaintiff’s expert’s affidavit was speculative, conclusory, and insufficient to raise an issue of fact as to the condition of the area at the time of the accident, because it was based on an examination of the area approximately 2.5 years after the accident occurred. The Court dismissed the complaint.

KSLN Partner Christopher Pusateri to Conduct Second Half of CLE on Homeowner’s Associations

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On May 23, 2017, KSLN attorney Chris Pusateri assisted in presenting the second part of a CLE on Homeowner’s Associations: Representing the Developer,  Buyer and the Association. Chris was also one of the featured speakers in the first part of the CLE, held in October of 2016.

For more information on this event, please click on the link below:

Defense Association of New York and Attorneys of KSLN Present Judge Pigott with Civil Justice Award

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Pictured (left to right) are: Ric Saraf, Henry Zomerfeld,  Rich Galbo, Tom Liptak, Hon. Thomas Pigott, J.S.C., Eileen E. Buholtz, Melissa Foti, Shari Jo Reich, and Ned Schule


Pictured (left to right) are: Ric T. Saraf, Henry A. Zomerfeld, Rich A. Galbo, Thomas E. Liptak, Hon. Eugene F. Pigott, Jr.,  J.S.C., Eileen E. Buholtz, Melissa A. Foti, Shari Jo Reich, and Ned E. Schule.


On April 21, 2017, KSLN Managing Partner Tom Liptak, on behalf of the Board of Directors of the Defense Association of New York (“DANY”), presented recently retired Court of Appeals Judge Eugene F. Pigott, Jr., with the DANY Civil Justice Award. The prestigious Civil Justice Award recognizes the recipient’s commitment to law and justice, civility, and professionalism. Judge Pigott most recently served as Acting Chief Judge of the Court of Appeals pending the confirmation of Chief Judge Janet DiFiore and he retired as a Senior Associate Judge. Devoted to the rule of law and the bench, Judge Pigott’s retirement was not the end of his judicial career, as he returned to his home of Erie County to serve as a Supreme Court Justice and oversee the Court’s Alternative Dispute Resolution Program. The Award presentation took place in Judge Pigott’s courtroom in Erie County, where fellow KSLN DANY members, colleagues, and friends joined for the celebration, which was broadcast at the Annual DANY Awards Dinner held in New York City. We congratulate Judge Pigott on his retirement from the Court of Appeals, his new role on the bench in Erie County, and on this award.