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Separating Elevations Risks Under Labor Law § 240 (1) From Other Conditions That Could Cause an Employee’s Injury

By: Erika Vasant, Law Clerk
Editor: Patrick J. Graham, Esq.

In Schutt v. Dynasty Transp. of Ohio, Inc., 203 A.D.3d 858 (2022), the Supreme Court of New York, Appellate Division, Second Department reaffirmed the State’s current understanding of Labor Law §240(1). In this case, plaintiff, an elevator assembly employee, was unloading the components of an elevator from a truck. As plaintiff was attempting to move a hydraulic jack, his foot slipped and he fell down two feet from the truck bed injuring his shoulders and back. When plaintiff stood up, he noticed that an oily substance was on his clothes, which he determined to have originated from the truck’s bed.

Plaintiff filed a complaint alleging violations of Labor Law §240(1) and §241(6) as well as negligence by the defendants. The Supreme Court, however, granted all the defendants’ motions to dismiss, and the plaintiff appealed.

The Appellate Division first referenced the notes in Labor Law Section 240(1) which states:

Labor §240(1) should apply only to circumstances where there are risks related to elevation differentials since types of devices which statute prescribes (ladders, scaffolds, etc.) share common characteristic related to relative elevation at which task must be performed or at which materials or loads must be positioned or secured.

As such, the Court reasoned that if plaintiff’s injury resulted from an elevation risk, but the fall was actually caused by spilled oil, the fall would constitute a separate hazard. Leaning on the Court of Appeals of New York’s decision in Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (N.Y. 2015), the Court noted that “regardless of the type of safety device involved, liability arises under Labor Law §240(1) only where the plaintiff’s injuries are the ‘direct consequence’ of an elevation-related risk not a separate and ordinary tripping or slipping hazard.”

Prior to Nicometi, the Court of Appeals held that “…the question is whether the circumstances surrounding plaintiff’s work subjected him to the sort of risk which Section 240(1) was intended to obviate.” Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (N.Y. 1991). In analyzing both Nicometi and Rocovich the Court affirmed that Labor Law §240(1) only applied to injuries caused by elevated surface differentials.

Nonetheless, the Court did not dismiss the claims against the same defendants regarding the causes of action relating to Labor Law Section 241(6) based on 12 NYCRR 23-1.7(d). The law bars employers from allowing employees to “use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” N.Y. Comp. Codes R. & Regs. tit. 12 §23-1.7 (2021). In this case, the Court found that the defendants did incur liability by allowing Plaintiff to perform his work in the truck amidst spilled oil.

Fundamentally, this case continued Labor Law §240(1) preference for employers because liability is only incurred when the injury stems from a device that creates elevation risks. If an injury stems from any other type of object that has no elevation risk, then employers are exempt from liability. Even so, employers must remain careful so as to not permit employees to perform their work in slippery conditions in order to avoid violating 12 NYCRR 23-1.7(d).

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Erika Vasant is one of Capehart Scatchard’s 2022 Law Clerks. Ms. Vasant is a rising 3L at Rutgers Law School. She has played an active role in diversity as President of the South Asian Law Students Association. Currently, she is President of the Rutgers Employment and Labor Law Association, Vice President of the Animal Legal Defense Fund, and the Notes and Comments Editor for the Women’s Rights Law Reporter. Last summer, she interned with the Honorable Judge Younge in the United States District Judge for the Eastern District of Pennsylvania. She is incredibly honored to be interning at Capehart Scatchard this summer!

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United States Supreme Court Reaffirms the Defense of Qualified Immunity as Applied in Constitutional Excessive Force Cases

The United States Supreme Court has taken two opportunities to reaffirm the use of the defense of qualified immunity as applied to police officers who have been sued for civil rights violations pursuant to 42 U.S.C. § 1983. On October 18, 2021, the Court rendered decisions in City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021) and Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021) in which both claimants alleged that responding officers violated their respective constitutional rights by using excessive force. The issue in both cases was whether the rights that the claimants alleged to have been violated by the officers were “clearly established” such that the officers were given fair notice that their conduct was in violation of 42 U.S.C. § 1983.

The Supreme Court’s analysis in these recent decisions centered on the doctrine of qualified immunity and the doctrine’s protection of officers from civil liability so long as the officers’ conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court explained that the doctrine of qualified immunity will be applicable to “all but the plainly incompetent or those who knowingly violate the law.” The Court also reiterated that lower courts must not “define clearly established law at too high a level of generality.” A general rule or a rule of law suggested by then-existing precedent will not be sufficiently “clearly established.” Rather, the Supreme Court reasoned that “rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” While a jurisdiction’s precedent need not be directly on point with the facts of a given situation, the statutory or constitutional question must be beyond debate. As the Court noted, these principals are particularly critical in Fourth Amendment excessive force situations and the Court will decline to follow a jurisdiction’s precedent that does not meet this “clearly established” criteria.

In Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021), Officers Josh Girdner, Chase Reed and Brandon Vick responded to a call from a woman claiming that her ex-husband, Dominic Rollice, entered her home’s garage and would not leave. The officers met Rollice at the side door of the garage and spoke to him from a distance. Rollice appeared nervous and when Officer Girdner took a step toward Rollice, Rollice turned and walked toward the back of the garage where his tools had been stored. Officers followed from six feet away, ordering Rollice to stop as he proceeded to pick up a hammer. Rollice held the hammer as if he were going to swing it and the officers drew their guns ordering Rollice to drop the hammer. When Rollice raised the hammer over his head and took a stance as if he were about to throw the hammer or charge the officers, Officer Girdner and Officer Vick fired their weapons and killed Rollice. The incident was captured on body camera footage.

Officers Girdner and Vick, among others, were sued by Rollice’s estate pursuant to 42 U.S.C. § 1983 for an alleged violation of Rollice’s Fourth Amendment rights. The officers filed a motion for summary judgment on the merits of the case, arguing the defense of qualified immunity, which motion the District Court granted by finding that the use of force was reasonable and even if it was not, qualified immunity was applicable.

The Court of Appeals for the Tenth Circuit reversed the District Court’s decision. The Tenth Circuit reasoned that its precedent allows an officer to be held liable for a shooting that is objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring the deadly force. With this situation, the Appeals Court believed that the officers stepping toward Rollice and essentially cornering him in the garage recklessly necessitated the use of deadly force. Further, the Tenth Circuit, relying on Allen v. Muskogee, 119 F. 3d 837 (10th Cir. 1997), found that the officers’ conduct in this case was clearly established as unlawful. In Allen, officers responded to a potential suicide call by rushing toward a parked car, screaming at the suspect and attempting to physically wrestle a gun from his hands.

Upon appeal, the United States Supreme Court reversed the Tenth Circuit’s decision. The Court did not believe it needed to decide whether the Fourth Amendment was violated or whether the officers recklessly created a situation requiring deadly force. Instead, the Court held that the officers did not violate any clearly established law in the jurisdiction which would put them on notice that their conduct was unlawful. The Court distinguished this case from the facts in Allen in that the officers here engaged in a conversation with Rollice, stayed six feet away from him the entire time and did not yell at him until he picked up the hammer. Based upon these facts, the Court reasoned that Allen did not “clearly establish” the officers’ conduct as reckless or excessive. After dismissing the remainder of the cases relied on by the Tenth Circuit, the Supreme Court held that a reasonable officer could miss the connection between the Allen case and the present case, which led it to reverse the Tenth Circuit. The Supreme Court stressed the importance of jurisdictions defining clearly established law with specificity so that an officer applying the legal doctrine to a factual situation will have sufficient guidance.

Similarly, in Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021, Officer Daniel Rivas-Villegas, among other officers, was called to the scene of an incident where a woman and her children were barricaded in a room in fear of claimant, Ramon Cortesluna. The police dispatcher informed Officer Rivas-Villegas that Cortesluna was believed to be using a chainsaw. Officers knocked on the door, announced their presence and demanded Cortesluna to come to the door. Officers demanded that Cortesluna drop his weapon, and he complied by dropping the weapon and following commands to raise his hands and walk toward the officers. One of the officers identified a knife protruding from Cortesluna’s front left pocket, and the officers again demanded that Cortesluna keep his hands raised. When Cortesluna dropped his hands, he was shot twice with a beanbag shotgun and complied with an order to get on the ground. Officer Daniel Rivas-Villegas then straddled Cortesluna, placing his right foot next to Cortesluna’s right side and placing his left knee on Cortesluna’s back for “no more than eight seconds.”

Cortesluna later filed suit against Officer Rivas-Villegas pursuant to 42 U.S.C. § 1983, claiming Officer Rivas-Villegas’ actions constituted excessive force in violation of the Fourth Amendment. The District Court granted Officer Rivas-Villegas’ motion for summary judgment, based on the doctrine of qualified immunity, but the Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that Officer Rivas-Villegas was not entitled to qualified immunity because Ninth Circuit precedent “put him on notice that his conduct constituted excessive force.” This holding was only supported by LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2020) in which police pushed their way into a man’s home following a noise complaint, wrestled him to the ground, pepper sprayed him and dug a knee into his back causing permanent damage. The Ninth Circuit panel reasoned that since both respondent in LaLonde and Cortesluna were lying face down on the ground and not attempting to resist arrest, the officer’s knee in the backs of both men constituted excessive force.

This decision was appealed to the United States Supreme Court, which reversed the Ninth Circuit decision. The Court ruled that even if Ninth Circuit precedent clearly established law concerning excessive force in violation 42 U.S.C. § 1983, the LaLonde decision did not give Officer Rivas-Villegas reasonable notice that his conduct constituted excessive force, making qualified immunity for Officer Rivas-Villegas proper. The Court explained that “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable official would have understood that what he is doing violates that right.” A right is “clearly established” where it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.

The Court reasoned that a jurisdiction need not have a case directly on point with the facts of any given situation for a right to be “clearly established,” but the statutory or constitutional question must be beyond debate. Specifically, in cases of alleged Fourth Amendment violations, excessive force will be evaluated by considering the facts and circumstances of the case, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers and others and whether the suspect is actively resisting arrest or attempting to flee.

Against this background, the Supreme Court reasoned that Cortesluna was required to, and ultimately did not, point to a controlling case in the jurisdiction which would put Officer Rivas-Villegas on notice that his conduct constituted excessive force. The Court stated that the facts of LaLonde were materially distinguishable from the present case in that the LaLonde decision was based on a noise complaint where the suspect was unarmed and generally not considered dangerous or resisting at the time of his apprehension. A knee was deliberately dug into his back despite a lack of resistance and the absence of a weapon. Cortesluna, on the other hand, was a suspect in a potential domestic violence incident in which he was reported to be using a chainsaw and was found armed with a knife. Officer Rivas-Villegas placed his knee on Cortesluna’s back for no more than eight seconds. Thus, in the absence of any similar case that would put Officer Rivas-Villegas on notice that his conduct constituted excessive force, qualified immunity was proper.

 


Patrick J. Graham, Esq. focuses his practice in litigation through the federal and state courts of New Jersey, with a concentration on creditor’s rights, business collection, tort defense, premises liability and products liability defense, Tort Claims Act defense, construction, estates, employment and professional malpractice. Prior to joining Capehart, Patrick was a Judicial Law Clerk to the Honorable Jean S. Chetney, J.S.C., New Jersey Superior Court, Law Division-Civil Part, Salem. He also served as a Judicial Extern for the Honorable Michael J. Haas, J.A.D., New Jersey Superior Court, Appellate Division, Westmont.