News Plaintiff Skates Past Assumption of Risk Defense (NY) August 21, 2013 < Back Share to: Most people understand that when you participate in sports, you might get hurt. So in New York, the general law is that “a voluntarily participant in a recreational sporting event has no legal recourse for injuries caused by an occurrence or condition that was a known, apparent, or reasonably foreseeable consequence of such participation.” But the U.S. District Court for the Northern District recently issued a questionable decision in connection with a roller skating accident. In Diaz v. High Rollers Recreational Center, Inc., the plaintiff, while skating, noticed a young man with long hair “skating aggressively and at a higher rate of speed than the other skaters.” The man skated fast while cutting in and out of the path of other skaters, but his conduct was not reported to High Rollers’ staff. Eventually, this unidentified skater struck plaintiff from behind, causing her to fall and injure her ankle. Plaintiff sued High Rollers, claiming that High Rollers failed to properly supervise the skaters and allowed reckless skating. High Rollers argued that plaintiff assumed the risk of skating, and that in any event it provided adequate supervision and was not the proximate cause of plaintiff’s injuries. The judge found that the skater’s conduct was obvious to all at the skating rink, including High Rollers employees, and that a sudden collision is the type of risk typically assumed by skating participants. But the court found that a skater does not assume the risk of another skater’s reckless conduct and that the collision was not sudden but a foreseeable occurrence that could have been avoided with better supervision. Whether the defendant’s supervision was negligent was found to be an issue of fact to be determined by the jury. This type of incident strikes us as a risk typically assumed by skating participants and it seems that the court placed too great an emphasis on the “sudden” nature of the incident. We will continue to monitor this case to see if there is an appeal and if the outcome is any different. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News Playground Safety July 7, 2009 < Back Share to: In Butler v. City of Gloversville (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05369.htm) the plaintiff fell from a playground slide and sustained injuries. The plaintiff's theory of recovery was that the defendants failed to use the proper ground cover, such as pea stone. The New York Court of Appeals denied the defendants' motion for summary judgment because the plaintiff's expert found support for his theory in the US Consumer Safety Commision's Handbook for Public Playground Safety. Posted by Justin Rowe. Previous Next Contact

News Buyers Beware: Service Technicians Owe No Duty to Warn of Improper Installation November 29, 2011 < Back Share to: In Thorpe v. General Electric, plaintiffs purchased a General Electric refrigerator and had it installed in their vacation home (not by GE). The manual warned owners to only use copper tubing to connect the icemaker to house plumbing, and that plastic tubing posed a risk of water leakage over time. On the rear of the refrigerator near the waterline connection, a label further warned against using plastic tubing, and disclaimed liability for improper installation. Despite these warnings, the refrigerator was installed and connected with plastic tubing. Five years later, in August 2006, plaintiffs entered into a twelve-month service contract with GE. The contract disclaimed liability for damages arising out of installation, for damages caused by plumbing, or for replacement of tubing. It also disclaimed liability for any consequential damages related to the performance of the service contract. In May 2007, a GE technician repaired the icemaker. Sixteen months later, the plastic tubing ruptured and water leaked into the house, causing substantial damage. In opposition to GE’s summary judgment motion, plaintiffs argued that GE’s service technician had a duty to inspect the installation and warn plaintiffs of the improper installation. The court however, would not read a duty to inspect or warn into the service contract, and granted GE’s summary judgment motion. http://www.judiciary.state.nj.us/opinions/a2805-10.pdf Thanks to Sheila Osei for her contribution to this post. Previous Next Contact

News Plaintiff’s Now Occasionally Entitled To Recording IMEs In NJ May 13, 2022 < Back Share to: Recently, the Appellate Division dealt with three separate cases consolidated into one appeal on the issue of when a plaintiff’s attorney may have a third-party attend a plaintiff’s medical exam with a defense doctor, as well as whether it is permissible for a plaintiff’s attorney to audio and/or video record his client’s exam with a defense doctor. Difiore et. al. v. Pezic, et al. dealt with three plaintiffs against their respective defendants. The defendants scheduled neuropsychological and orthopedic evaluations of the three plaintiffs. Counsel for those plaintiffs insisted upon the presence of a third-party practitioner at the medical exam, as well as insisting that the exams be audio and/or video recorded. The law on this subject dating back roughly 20 years is that the plaintiff may be entitled to “unobstructive” audio recording of a psychiatric exam if the plaintiff is claiming emotional distress. In addition, case law allows a minor child to be accompanied by parents or other relatives during the child’s medical exam. Normally, trial judges in this state generally prohibit any recordings or the presence of third-parties at routine orthopedic exams. In a departure from this precedent, the Appellate Division vaguely held, in a published decision, that any disagreement over whether to permit third-party observation of any defense medical exam (including orthopedic exams of fully grown adults), are to be evaluated by trial judges on a case-by-case basis. Moreover, it is the plaintiff’s burden to show the court that third-party presence or recording, or both, is appropriate in a particular case. Video recordings are also now allowed, and any video taken will be allowed to be shown at trial. Third-party observers, however, are not allowed to interact with the plaintiff or otherwise interfere with the exam. However, the Court emphasized that the presence of a third party or recording the exam required “special conditions”. Perhaps the most egregious part of this decision is that it only applies to defense medical exams. Plaintiff attorneys have been and remain allowed to schedule medical exams of their clients without any notice to the defense, thus providing the defense no chance to audio record, video record or have a third-party attend the plaintiff’s exam scheduled by his attorneys. Moreover, the court expressly held that if the plaintiff’s expert is his treating physician, then there is a blanket prohibition on any of the above. Rules for me, but not for thee. We expect many contentious motions and appeals on this issue in the future. Thanks to Mike Noblett for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News New Atmosphere for Ongoing-Storm Rule (NJ) May 7, 2020 < Back Share to: Recently, in Pareja v. Princeton International Properties, the New Jersey Appellate Court analyzed whether the ongoing-storm rule applies in New Jersey. One winter day at 7:50 a.m., the plaintiff, Angel Alberto Pareja (“Parejca”), was walking from his car to the defendant, Princeton International Properties’ (“Princeton”) property (“Property”) when he slipped and fell on black ice after stepping onto the Property’s driveway apron. At the time of the accident, it was not snowing, nor did Pareja observe any ice on the roadway. Nevertheless, as it was thirty-two degrees and drizzling sleet, Pareja wore slip-resistant shoes. Moreover, one day prior to the accident, the National Weather Service issued an advisory predicting an inch of snow and sleet accumulations and trace amounts of ice for the time period between 1:00 a.m. and 10:00 a.m. the next day, i.e., the day of the accident. In addition, the National Weather Service warned that untreated surfaces might become slippery due to the precipitation. Although Princeton traditionally retained ice and snow removal services for the Property, no such services occurred the day of the accident. As such, there had been no snow or ice pre-treatment or removal before Pareja’s fall. Ultimately, Princeton filed a motion for summary judgment in the trial court asserting the on-going storm rule applied. In agreement, the trial court granted Princeton’s motion and held the on-going storm rule operated to preclude Princeton’s liability for the Accident. Significantly, the trial court determined that Princeton, as a commercial landowner, had no duty to keep the premises free and clear of snow and ice until after a reasonable amount of time passed following the cessation of the storm. In response, the plaintiff appealed. In pertinent part, Pareja argued the ongoing-storm rule was inapplicable. On appeal, the Court first considered the facts and circumstances surrounding the accident. Specifically, based on the record, the Court presumed that, at the time of the Accident, pedestrians were using the public sidewalks to go in and out of the defendant’s property, as the property consisted of a combination of business offices and apartments. Moreover, the Court reasonably inferred the defendant knew about the weather advisory providing that untreated surfaces might become slippery. The Court next analyzed the rationale of the ongoing-storm rule. In doing so, the Court concluded the ongoing-storm rule arbitrarily relieves commercial landowners from any obligation to ensure safety at their property while it is snowing. Specifically, the Court determined the ongoing-storm rule fails to deter tortious behavior and prevent accidents because it ignores situations where it is reasonable for a commercial landowner to remove or reduce foreseeable/known snow or ice hazards. Accordingly, based on the facts and circumstances of the accident, and the basis of the ongoing-storm rule, the Court held Princeton had a duty to take reasonable steps to ensure the Property and the public walkway abutting the Property was reasonably safe from snow or ice on the day of the accident. The Court reasoned that a commercial landowner’s duty of removing or reducing the foreseeable harm associated with snow and ice is not fulfilled by always waiting to act until after a storm ends. By extension, the Court held a commercial landowner may be liable if, after actual or constructive notice, it fails to act reasonably and prudently under the circumstances to remove or reduce the foreseeable hazard caused by snow and ice. In reversing the trial court’s decision, however, the Court stressed that its holding does not impose absolute liability for every slip and fall on snow and ice that occurs during a continuous storm, nor does it require landowners to take unreasonable precautionary measures or immediately clear snow and ice falling during an active storm. Rather, the duty of ordinary care, which was applicable in the instant matter, requires commercial landowners to act in a reasonably prudent manner in all circumstances. Finally, the Court held the question of whether a landowner acted reasonably was a question for the jury to decide. In sum, while this New Jersey Appellate Court decision precludes landowners from relying on the ongoing-storm rule to justify inaction, it stresses the importance of the reasonableness standard. And perhaps just as important, the reasonableness of a commercial landlord's acts and omissions during a storm are left for a jury to decide. It will be interesting to see how the standard of reasonableness develops in this context as defense of future cases of this kind will be reliant on specific facts. Thanks to Lauren Berenbaum for this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Speculative Evidence Is Not Sufficient In A New York Slip And Fall Case (NY) December 3, 2021 < Back Share to: To prevail on a summary judgment motion in a slip and fall action, a defendant has the initial burden of showing that it (a) did not create the hazardous condition and (b) did not have actual or constructive notice of its existence. In order to prove lack of constructive notice, a defendant must proffer evidence as to when the site was last cleaned or inspected prior to the accident. Conversely, a plaintiff may prove constructive notice by establishing that the alleged defect was visible, apparent, and existed for a sufficient length of time prior to the accident so that the defendant had time to discover and remedy it. However, a plaintiff’s claim will fail if their proofs are speculative, and they cannot satisfy the burden of proof with sufficient evidence. These issues were addressed in the recent Bronx County decision of Torres v. Sanitation Salvage Corp., 73 Misc. 3d 1214(A), 154 N.Y.S.3d 218 (N.Y. Sup. Ct. 2021). Plaintiff in that case was allegedly injured when she slipped on fruit and vegetable residue on a ramp at the Hunts Point Terminal Market. The market was owned by the City of New York and leased to Hunts Point, which then leased individual units to various produce vendors, including plaintiff’s employer. Hunts Point moved for summary judgment, asserting that it hired a sanitation service to clean the exterior areas of the market and that the area where plaintiff fell was cleaned just an hour prior to the accident. In her opposition, plaintiff argued that because her clothes were wet after the fall, a condition must have existed on the ramp that caused her to fall. However, the court determined that such evidence was insufficient to defeat the motion because there were no prior complaints made to Hunts Point and plaintiff testified at deposition that she never observed any residue in the area where she fell. Because plaintiff relied on “mere speculation” as to the cause of the fall and failed to show that the condition existed for a sufficient period of time prior to her accident, the court granted the motion and dismissed the claims against Hunts Point. The takeaway from Torres is that a New York slip and fall plaintiff cannot rely on mere speculation to sustain their burden of proof and must have concrete evidence to establish the element of constructive notice. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Court Dismisses Some, But Not All, Labor Law Claims For Alleged Elevation Injury (NY) April 21, 2023 < Back Share to: New York Labor Law imposes strict liability on property owners and contractors where a construction worker sustains an elevation-related injury, but the law does not apply to all worksite hazards. In Finnegan v. Thor Equities, LLC, the Supreme Court, New York County addressed several Labor Law issues in a case where plaintiff sued a premises owner, general contractor, and subcontractors for injuries sustained when he fell after stepping in a small hole on a construction project. Plaintiff testified that his foot and ankle went into the hole and the hole was only wide enough for his shoe to fit in it. Various parties moved for summary judgment as to the affirmative claims, cross claims and contractual claims. The Court initially denied motions relating to plaintiff’s §240(1) claim, finding that fact issues existed as to whether the size and depth of the hole was enough to render it a “gravity-related” hazard under that section. The Court noted that there is no “bright line minimum height differential” that determines whether an elevation hazard exists. It found that the size of the hole might have limited the distance a worker could fall, but fact issues existed as to whether the hole was a “gravity-related” hazard. One subcontractor also disputed the applicability of §240[1], arguing that it was not an agent of the general contractor or owner. The Court acknowledged that § 240(1) does not automatically apply to all subcontractors on a site and a plaintiff must show that the defendant exercised control over plaintiff, the work area or the work that gave rise to the injury. The Court found that the subcontractor established that it was not an agent of the general contractor or owner, but there were fact issues as to whether the subcontractor had the responsibility to correct the condition at issue. The Court also denied motions as to plaintiff’s Labor Law §200 and common law negligence claims. §200 is a codification of the common-law duty of landowners, general contractors and their agents to provide a safe workplace. A property owner is liable under § 200 when the owner created the dangerous condition causing an injury or failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice.” Where the injury was caused by the manner and means of the work, the owner or general contractor is liable if they exercised supervisory control over the work. The Court found that there were fact issues as to whether the accident was caused by a dangerous condition at the site or the means and methods of the work, so summary judgment as to those claims was not appropriate. However, the Court did award summary judgment as to plaintiff’s Labor Law §241(6) claims, which require that plaintiff show that his injuries were proximately caused by a violation of an applicable Industrial Code section. To be entitled to summary judgment, a defendant is required to show that the section(s) pled by plaintiff were not concrete, inapplicable or did not cause the alleged injuries. The Court evaluated certain code sections identified by plaintiff and found that they did not apply and therefore the §241(6) claims should be dismissed. The Finnegan decision is a good example of how New York courts will examine the specific burdens of proof and defenses applicable to each claim and that Labor Law claims are sufficiently distinct for a court to dismiss some, but not all, of the claims. Defense counsel should be aggressive in seeking dismissal of claims where there is a basis to do so. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Insurer Not Liable for Supplemental Spouse Liability (NY) June 23, 2023 < Back Share to: In New York, the Insurance Law requires motor vehicle insurers to notify policyholders about the availability of Supplemental Spouse Liability (SSL) coverage. In Levy v. New York Central Mutual Fire Insurance Company, the Westchester County Supreme Court addressed whether New York Central had notified the plaintiff about the availability of SSL insurance. The plaintiff, driving his car, accidentally struck his wife in a driveway. The plaintiff’s wife filed a claim against the plaintiff to New York Central, alleging she was injured due to the plaintiff’s negligence. New York Central informed the plaintiff’s wife her claim would not be considered as there was no SSL coverage. The plaintiff filed two causes of action: one alleging that New York Central failed to provide notice and the other alleging that New York Central was liable for breach of contract by not providing coverage to the plaintiff. The plaintiff claimed that the SLL notice failed to comply with the notification requirements. The Court stated “As set forth above, the SLL notice was partially bolded, alerting plaintiff of an important notice. There is no requirement for the entire page to be bolded. Although the SLL notice was not page 1 of the 89-page document, it was page 1 of one of the various notices in the insurance packet. A look at the insurance policy indicates that every new section of the policy starts with page 1 and continues for however many pages address that topic. This does not conflict with 11 NYCRR § 60-1.6 (b) (3), which provides flexibility for the term premium notice. In addition, while not set forth in the decision, the sample notification provision, provided under 11 NYCRR § 60-1.6(b)(5) is identical to what New York Central provided to plaintiff in the policy. Even if it was not identical or did not contain the bolded and all capital title of Supplemental Spousal Liability Coverage, the regulation itself states that an equivalent may be used.” New York Central established that it complied with the SSL notification requirements. This ruling serves as a reminder of the importance of thoroughly reading insurance policies and their coverage. Thanks to Seamus Rooney for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Layoffs At Hooters Creates Federal Class Action Lawsuit April 22, 2020 < Back Share to: On March 25, 2020, Hooters laid off 679 employees due to the COVID-19 pandemic’s impact on its business. In a March 26, 2020 statement Hooters explained: “With our dining rooms closed and revenues more than halved, we and our franchisees have had no alternative but to dramatically reduce the size of our work force in response.” These layoffs resulted in a April 16, 2020, class action lawsuit filed in the U.S. District Court for the Middle District of Florida, alleging that Hooters violated the federal Worker Adjustment and Retraining Notification Act (WARN) by not giving employees any advance notice before executing layoffs last month due to the COVID-19 pandemic. The WARN Act typically applies to workers at companies with at least 100 employees. The law aims to protect qualified workers by requiring their employers to provide at least 60 calendar days' advance written notice of a plant closing or mass layoff at a single site of employment, according to a description of the law on the U.S Department of Labor’s website. However, the WARN Act “makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters,” the description also says. On behalf of the class, two former employees allege that Hooters could have evaluated the impact of COVID-19 on its workers prior to the date that they were terminated in “mass layoffs” and that Hooters violated the federal WARN act by not giving employees any advance notice before executing layoffs last month due to the COVID-19 pandemic. The suit seeks damages equal to 60 days’ compensation and benefits for a class covering all Hooters employees in Florida who were not given at least 60 days advance written notice before the mass layoffs. The Complaint claims that “the fact that Congress recently made available to defendant and many other businesses nationwide millions of dollars in forgivable loans through the ‘Paycheck Protection Program,’ but defendant still opted to instead engage in a mass layoff — and do so without any advance written notice to its employees — only further underscores the severity of the WARN Act violations committed by Hooters.” Hooters has not yet responded to the Complaint, but in a March 26, 2020 statement, Hooters writes “With our dining rooms closed and revenues more than halved, we and our franchisees have had no alternative but to dramatically reduce the size of our work force in response.” Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions.   Previous Next Contact

News Third Circuit Court of Appeals Holds: Clear Language Defining “Occurrence” Matters (PA) October 25, 2019 < Back Share to: Recently, in Sapa Extrusions Inc v Liberty Mutual Insurance Company, the United States Court of Appeals for the Third Circuit was tasked with analyzing whether, under Pennsylvania law, Sapa Extrusions, Inc. (“Sapa”), a manufacturer of “originally coated extruded aluminum profiles”, was entitled to recover from its liability insurers the cost of settling a lawsuit alleging its product was defective. Based on long-standing Pennsylvania precedent, the Court determined coverage under the policies depended on the specific language in the respective policies. The Court’s decision is of particular interest as, Bob Cosgrove, counsel for Amicus Curiae Philadelphia Association of Defense Counsel, submitted an amicus brief providing guidance on the pertinent issue on appeal. By way of background, in 1996, Sapa and Marvin Lumber and Cedar Company and Marvin Windows of Tennessee, Inc. (collectively “Marvin”) entered an agreement requiring Sapa to abide by Marvin’s “Aluminum Extrusion Coating Specification” in its manufacturing process. Between 2000 and 2010, Sapa, in accordance with Marvin’s guidelines, sold approximately 28 million extrusions to Marvin – Marvin incorporated roughly 8.5 million of those extrusions in its windows and doors. Unfortunately, Marvin’s customers began complaining about issues they experienced with Sapa’s extrusions. Marvin, therefore, commenced a lawsuit against Sapa, alleging Sapa failed to adhere to Marvin’s specifications. After years of litigation, Sapa and Marvin finally settled the lawsuit. During the time Sapa supplied extrusions to Marvin, Sapa was insured by eight insurance carriers under twenty-eight commercial general liability policies (“CGL”). Like all CGL policies, these policies required an “occurrence” to trigger coverage – based on the allegations in the underlying lawsuit, the carriers disclaimed coverage to Sapa. In response, Sapa commenced the instant lawsuit against all eight carriers to assert breach of contract claims and seek a declaratory judgment to recover the cost of the underlying settlement. To ascertain whether Sapa was covered under the CGL policies, the Court relied on Pennsylvania’s “Four Corners Rule”, which provides an insurer’s duty to defend and indemnify stems from the factual averments contained in the complaint. Focusing solely on the complaint, the Court analyzed whether, inter alia, Marvin’s allegations of faulty workmanship constituted an “occurrence”, noting he CGL policies generally provided reimbursement to Sapa for “sums that [Sapa] becomes legally obligated to pay as damages because of . . . ‘property damage’ . . . caused by an ‘occurrence[]’”. After reviewing the CGL policies in detail, the Court discovered the CGL policies used one of three definitions. The first group of CGL policies defined “occurrence”, inter alia, as an accident – these CGL policies contained the “Accident Definition”. Since Marvin’s claims in the underlying complaint stemmed from faulty workmanship, the Court held the CGL policies containing this definition did not cover such claims. Essentially, the Court determined Marvin’s allegations did not amount to an unforeseeable, “fortuitous event”. The second group of CGL policies defined “occurrence”, inter alia, as an accident which results in property damage neither expected nor intended form the standpoint of the insured – these CGL policies contained the “Expected/Intended Definition”. The third group of CGL policies defined “occurrence”, inter alia, as injurious exposure, which results in property damage, neither expected or intended from the standpoint of the insured – these CGL policies contained the “Injurious Exposure Definition”. Unlike the Accident Definition, the Court reasoned the Expected/Intended Definition and the Injurious Exposure Definition latter required a subjective-intent standard that was not applied by the District Court. Through this standard, the Court reasoned the Expected/Intended and Injurious Exposure Definitions of “occurrence” were ambiguous. Therefore, to give proper effect to the clear language and terms of the CGL policies containing the Expected/Intended Definition and Injurious Exposure Definition, the Court remanded the matter to the District Court for further consideration. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Just Because a City Agency Owns a Property, That Does Not Mean the City Owns it, Too April 19, 2024 < Back Share to: When it comes to determining premises liability, just because a government agency is responsible for a premises, that does not automatically mean the entire municipality itself is responsible just by virtue of controlling that agency. As with any entity, for a party to be liable for a tort that occurs on its property due to a dangerous or defective condition, they either had to create it or it must be shown they owned, controlled, maintained, or had special use of the property. This principle applied just the same in the case Rafael Acevedo v. Hope Gardens I, LLC, et al. After Plaintiff slipped and fell in a staircase on New Year’s Eve 2019, he filed suit against multiple entities, including both the City of New York and the New York City Housing Authority. While the New York City Housing Authority was the actual owner of the property, having leased it to the first-named defendant, the lower court granted the City of New York’s motion for summary judgment to be let out of the case. While Plaintiff appealed this decision, the Second Department upheld it as they found there was no evidence that the City of New York met any of the criteria for a finding of liability. This ruling is interesting as it seems almost in someway similar to the relationship between a subsidiary company and its parent company or a corporation/LLC and its shareholders/members, with the New York City Housing Authority in this case being the former and the City of New York being the latter. While no one would deny that the Housing Authority answers to the City of New York, the City of New York did not have any direct control of the property with that being done through the Housing Authority. If you are on the Plaintiff side, keep this in mind to ensure that you are suing the right entity; if you are the Defendant side, this may be a valuable defense to bring up. Acevedo v. Hope Gardens I, LLC .pdf Download PDF • 458KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News Jury-Rigged Saw of Independent Contractor Cuts Down Labor Law 241(6) Claim (NY) March 17, 2016 < Back Share to: Plaintiffs asserting Labor Law § 241(6) claims must show that their injuries were proximately caused by a violation of an Industrial Code rule or regulation. One of the primary defenses available to defendants in such actions is that the worker-plaintiff was the “sole proximate cause” of the alleged injuries. In Scoz v J&Y Elec. & Intercom Co. Inc plaintiff, an independent contractor, received hand injuries as he was cutting flooring for installation. During discovery, plaintiff testified that rather than use a purpose-built table saw, he instead used a jury-rigged device he assembled himself from an upside-down circular saw. Plaintiff deliberately disabled two safety devices to make his contraption useable, and testified that he knew the saw was unsafe as-assembled. However, he claimed that defendants had observed him using the unsafe device and neither stopped him nor provided him with better equipment. The First Department upheld the dismissal of plaintiff’s Labor Law § 241(6) claim, noting that, as an independent contractor, plaintiff was unsupervised and responsible for choosing the best methods and tools to complete the task at hand. The court concluded that Industrial Code §§ 23 1-5(c) and 23-1.12(c) were inapplicable, because the manner in which plaintiff assembled his saw made it impossible to use protective guards or spreaders, and the saw was deliberately assembled without safety devices rather than broken and in need of repair. Plaintiff’s decision to jury-rig a tool that was inappropriate for the job at hand, and to do so in a way that disabled its safety devices, was therefore sole proximate cause of his injuries. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact