Litigation Quarterly Newsletter

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New York Appellate Court Applies N.Y. Labor Law § 240(1) to Below-Grade Excavation Injuries

The Appellate Division of the Supreme Court of New York recently reversed a Supreme Court of New York, New York County decision in which it contemplated whether elevation risk analysis under N.Y. Labor Law § 240(1) applies to a cave-in related accidents at a below-grade excavation. In Rivas v. Seward Park Housing Corp., 195 N.Y.S. 3d 188 (App. Div. 2023), Plaintiff was a laborer employed by an excavation subcontractor hired to dig a trench in order to ascertain whether the defendant property owner’s external water pipes were leaking. As Plaintiff and his coworkers reached the water pipes 12-feet below the surface, the hand-dug trench collapsed and buried Plaintiff thereby causing his injuries.

As a result of the incident, Plaintiff brought suit against various parties including the property owner, contractor, and subcontractor of a construction project. Plaintiff’s Complaint alleged a violation of N.Y. Labor Law § 240(1) for the lack of adequate shoring along the trench walls, which Plaintiff claimed would have prevented the cave-in.

N.Y. Labor Law § 240 is known commonly as the “scaffold law” and states, in relevant part:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Countering Plaintiff’s allegation of the lack of shoring, defendant contractor’s foreman recalled that plywood shoring was used in the subject trench and was continuously moved as the project progressed. The foreman also disputed the depth of the trench and noted that it was only six feet deep as opposed to Plaintiff’s allegation that the trench was twelve feet deep.

Relying on Labor Law § 240(1), Plaintiff moved for Partial Summary Judgment as to the issue of the liability of all defendants. In so moving, Plaintiff’s motion was supported by deposition testimony and expert opinions that both claimed that the makeshift shoring was inadequate to protect Plaintiff from the elevation-related hazards posed by the trench. Defendant property owner and defendant contractor filed cross-motions for Summary Judgment, arguing that Labor Law § 240(1) did not apply to cave-in cases.

The Trial Court granted Defendants’ cross-motions for Summary Judgment on the grounds that a cave-in at an excavation site does not present an elevation-related risk within contemplation of Labor Law § 240(1). In so reasoning, the Court cited past Appellate Division opinions as support.

On appeal, Plaintiff contended that Labor Law § 240(1) should apply to situations where an individual is working below surface grade and a lack of protection results in objects falling from above due to improper securing of the below surface grade site. Plaintiff highlighted the severe elevation difference between the depth of the trench and the top of the trench wall that collapsed causing the subject injuries. Plaintiff argued that this height differential required some sort of safety device above and beyond the inadequate shoring used on the date of the incident.

Having heard Plaintiff’s reasoning, the Appellate Division found that even viewing the facts most favorable to defendants, there was a palpable, non-de minimis height differential at the time of the accident. The Court noted that there was more than one foot of space between the top of Plaintiff’s head as he knelt in the trench and the top of the trench wall, which it believed was a significant height differential. For this reason, the Appellate Division agreed that the trench wall needed a shoring device to protect Plaintiff in light of this height differential. The Court did not agree with the defendants’ argument that a cave-in was a normal construction site danger and instead reasoned that Plaintiff’s injuries were a direct result of the elevation-risk cited by Plaintiff.

For these reasons and others stated on the record, the Appellate Division found that the defendant property owner and contractor failed to adequately protect Plaintiff from a reasonably preventable gravity-related accident. Therefore, the Court found the defendants to be liable under Labor Law § 240(1). In so deciding, the Appellate Division expanded the scope of Labor Law § 240(1) protections beyond height related incidents and into depth related incidents.

United States District Court for the District of New Jersey Immunizes a Municipality Under the New Jersey Tort Claims Act

On October 31, 2023, the United States District Court for the District of New Jersey granted Motions for Summary Judgment filed by Atlantic City and Bally’s Park Place, LLC (hereafter “Bally’s) in the case of Snead v. Bally’s Casino, 2023 U.S. Dist. LEXIS 194905 (D.N.J. Oct. 31, 2023). The Motions and underlying case stemmed from an incident where Plaintiff was walking on the Atlantic City boardwalk when her foot caught a raised board causing her to trip and fall. Plaintiff initially filed a Complaint against these defendants in State Court, but the case was removed to District Court on the basis of diversity jurisdiction.

The board at issue was approximately two inches higher than the other boards in the area. It was undisputed that Atlantic City owned the board at issue and that Bally’s fixed the board for public safety reasons instead of waiting for an Atlantic City representative to be dispatched for repairs. Atlantic City retains boardwalk inspectors and carpenters, who walk the entire length of the boardwalk at least five days each week looking for potential hazards. In the deposition testimony of a City representative, he acknowledged that the subject board would be considered a tripping hazard in need of repair if that condition were discovered during a regular inspection of the area.

On its Motion for Summary Judgment, Atlantic City relied on immunities granted to the municipality through the New Jersey Tort Claims Act. Specifically, Atlantic City claimed that the board at issue did not constitute a “dangerous condition” and that it had neither actual nor constructive notice of the board at issue. Even if it did have notice of this condition, Atlantic City argued that retaining inspection staff and carpenters to identify and repair these issues was not palpably unreasonable.

Plaintiff countered in her own cross-Motion for Summary Judgment that Atlantic City admitted the subject board was a dangerous condition because it admitted that the board constituted a tripping hazard. She also argued that the City had at least constructive notice of the subject board because her liability expert opined that the board existed as a hazardous condition for approximately one to two years prior to the fall. Allowing this condition to exist, Plaintiff argued that Atlantic City’s inaction was palpably unreasonable such that Tort Claims Act immunities could not be relied upon.

In ruling on Atlantic City’s cited Tort Claims Act Immunities, the Court began with whether Plaintiff was able to prove that the subject board constituted a dangerous condition. The Court rejected Plaintiff’s argument as to this immunity because it believed that Plaintiff’s reliance on Atlantic City’s representative testimony, her expert report and her own assumptions as to the board height were insufficient to meet the Act’s threshold. The Court felt that Plaintiff’s expert report was nothing more than net opinion that could not properly support her claims. Specifically, the Court found that the report cited no evidence for the conclusion that the elevated board existed for one to two years prior to the fall or that a faulty anchoring system was to blame for this condition. The Court noted a lack of relevant code citations in Plaintiff’s report, which was necessary to form the basis for the expert’s opinion.

The Court similarly rejected the argument that Atlantic City’s representative admitting that the raised board could be considered a tripping hazard was somehow an admission that a dangerous condition existed. Relying on a number of prior decisions, the Court dismissed Plaintiff’s reasoning and found that no such admission took place through the City’s testimony.

Similarly, the Court found that Plaintiff had not shown Atlantic City had actual or constructive knowledge of the subject board. This point was rejected because Plaintiff’s argument relied upon the net opinion of her expert, who opined without factual support that the subject board existed in a dangerous condition for approximately two years prior to the fall. The Court also rejected Plaintiff’s conclusion that the existence of a dangerous condition, if proven, automatically constitutes actual or constructive notice of same.

Finally, the Court found that even if Plaintiff had proven the existence of a dangerous condition of which Atlantic City was aware, its retention of boardwalk inspectors and boardwalk carpenters who are on the lookout for hazardous conditions is far from palpably unreasonable conduct.

Overall, the District Court granted Atlantic City’s Motion for Summary Judgment finding the City immune from liability under the New Jersey Tort Claims Act. The Court’s decision further solidified the degree and type of evidence that a plaintiff must submit in order to overcome the Act’s strict provisions emphasizing that immunity for public entities is the norm when potential liability may also exist.

Appellate Division Reaffirms Past Medical History Comparative Analysis Requirement in Cases Claiming Aggravation

The New Jersey Appellate Division recently issued an unpublished yet informative opinion in a matter involving a claim of aggravation of significant pre-existing injuries. The matter, Nichols v. Duke Linden, LLC, 2023 WL 4553463 (App. Div. July 17, 2023), involved a simple set of facts. Plaintiff slipped and fell on prevailing snowy conditions while making a delivery to a premises owned by Defendant Duke Linden, LLC and leased to Defendant Wayfair. Duke had retained BrightView Landscapes, LLC for snow removal services at the premises and BrightView, in turn, subcontracted the snow remediation work to Caruso Landscaping. 

After the Discovery End Date passed, the Court set both an arbitration and trial date. The defendants, with the exclusion of the already dismissed Wayfair defendant, filed Motions for Summary Judgment. These Motions emphasized that dismissal was proper based upon the purported failure of the Plaintiff’s orthopedic medical expert to provide a “sufficient comparative analysis” of Plaintiff’s documented past medical history with the injuries that he claimed to have suffered in the subject fall. Each Defendant argued that this lack of comparative analysis rendered Plaintiff’s expert opinion an inadmissible “Net Opinion” under applicable precedent thereby entitling Defendants to Summary Judgment.

The Trial Judge initially found that Plaintiff’s expert report was insufficient, based upon Davidson v. Slater, 189 N.J. 166, 186 (2007). However, rather than granting Defendants’ Motions for Summary Judgment, the Judge denied the Motions without prejudice and ultimately provided Plaintiff with ninety (90) days to provide an “updated” medical expert report including a comparative analysis. Meanwhile, Defendants filed a Motion seeking Leave to Appeal, which the Appellate Division granted, “remanding for the judge to decide the summary judgment motions on the record as it stood on the return date.” Slip. Op. at 1.

Upon remand, the Judge then granted the defense Motions for Summary Judgment. In so deciding, the Judge rejected Plaintiff’s argument that a comparative analysis was not required. Relying on the Supreme Court’s decision in Davidson, the Judge noted “the need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally.”  Davidson, 189 N.J. at 184.

Thus, after finding that Plaintiff was required to provide a comparative analysis, the Judge held that Plaintiff’s expert reports were “devoid of any comprehensive analysis of plaintiff’s extensive medical history concerning the pre-existing conditions in his left knee and lower back[,] which plaintiff specifically allege[d] were ‘aggravated’ by the slip and fall accident.” Slip. Op. at 2. Accordingly, since Plaintiff’s expert reports contained no more than “conclusory statements as to the cause of the Plaintiff’s injuries without discussing Plaintiff’s prior medical history,” they constituted an inadmissible “Net Opinion,” leaving Plaintiff unable to rely on the reports in attempting to establish a prima facie case of negligence. Slip Op. at 1.

Plaintiff then appealed the Trial Court’s decision by arguing that a comparative analysis was not required and even if it was required, the submitted expert reports were sufficient for the purposes of establishing a prima facie case of negligence. In the alternative, Plaintiff argued that the Court should have held a hearing pursuant to New Jersey Rule of Evidence 104 so that the admissibility of the report could have been argued prior to the decision to dismiss Plaintiff’s claims.

However, as the Appellate Division noted, Plaintiff never requested such a hearing and continued only by “insist[ing] his expert did not need to conduct a comparative analysis.”  Slip. Op. at 2. The Appellate Division agreed with the Trial Court’s holding that since Plaintiff was pursuing a claim of aggravation of documented pre-existing injuries, Plaintiff was required to “medically segregat[e] a claimed aggravation of a pre- existing injury from the fresh injury.” See Davidson, 189 N.J. at 187. Plaintiff failed to document what the Appellate Division described as a “decades-long history of complaints and injuries to his left knee, including… two prior arthroscopic surgeries to that knee…”  Slip. Op. at 2. Accordingly, the Appellate Division held that the opinion of Plaintiff’s medical expert that the need for total knee replacement was causally related to the fall at issue here was a “classic” example of an inadmissible “Net Opinion,” “[t]hat is, an expert’s bare opinion that has no support in factual evidence or similar data.”  Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011). Thus, Summary Judgment was properly granted to the Defendants.

Significantly, the Appellate Division concluded its opinion in the instant matter as follows:

The (New Jersey Supreme) Court warned sixteen years ago that ‘the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries.’

Slip. Op. at 2 (citing Davidson, 189 N.J. at 188).

It is clear from this conclusion that while this opinion is neither published nor precedential, it is insightful as to how Courts will assess aggravation claims in the absence of a comparative analysis. While a Trial Court could potentially overlook less significant past medical histories as not needing a comparative analysis, at minimum, the argument that all aggravation claims require a detailed and definitive comparative analysis should be considered and raised by the defense.

The Long Road Home: The Eastern District of Pennsylvania Finds an Employer Liable for the Actions of its Employee During the Employee’s Ride Home from Work

The United States District Court for the Eastern District of Pennsylvania recently had occasion to broadly construe Pennsylvania’s vicarious liability precedent. In Nedelton v. Keebler, 2023 U.S. Dist. LEXIS 113564 (E.D. Pa. June 30, 2023), Plaintiff, Michael Nedelton, was struck by Defendant Christopher Keebler’s truck as Keebler was driving through an intersection near Logan Circle in Philadelphia. Keebler was in Philadelphia on the date of the incident because he was working for his employer, Defendant A&J Builders at a job site on the 13th floor of 1818 Market Street. However, at the time of the incident, Keebler was leaving the job site to return home.

Seeking to avoid liability for the actions of its employee, A&J Builders filed a Motion for Summary Judgment seeking the dismissal of all claims against it with prejudice. The basis for the Motion was that A&J Builders was not vicariously liable to Plaintiff for Keebler’s actions because Keebler was not within the scope of his employment at the time of the incident. Plaintiff opposed the Motion arguing that a genuine issue of fact existed as to whether Keebler was within the scope of his employment and therefore, the Motion should be denied so that a jury may assess the scope of employment issue.

On June 30, 2023, the United States District Court for the Eastern District of Pennsylvania denied defendant A&J Builders’ Motion for Summary Judgment finding that a genuine issue of material fact did exist as to whether Keebler was within the scope of his employment at the time of the subject incident. Specifically, the Court found that:

An employer is a “master,” or principal, who employs an agent, (i.e., his employee, or “servant,”) to render services on the employer’s behalf, and where the employer has the right to control the physical conduct of the employee in the employment of services on behalf of the employer, a negligent act within the scope of the employment will give rise to vicarious liability.

Nedelton, 2023 U.S. Dist. LEXIS 113564, at *5 (citing Shuman Estate v. Weber, 419 A.2d 169, 172 (Pa. Super. 1980)).

In citing this precedent, the Court also adhered to the long-standing principle that the determination as to whether a particular act of an employee is considered within the scope of his employment is generally a question reserved for the jury. This general principle does give way to an exception where no disputes exist as to material issues of fact and inferences drawn therefrom. See Shuman, 419 A.2d at 173.

Here, A&J Builders argued that since Keebler left the job site five minutes before the incident took place and was on his way home at the time of the incident, he could not possibly be within the scope of his employment. This position was well supported by applicable precedent finding that an employee is generally not considered to be acting within the scope of his or her employment while driving to and from a place of employment.

However, Plaintiff countered and the Court agreed that Keebler would not have been in Philadelphia but for (1) a request from his employer to work at a “rush job;” (2) to which he was required to bring his own tools; (3) to which no public transportation existed or could have practically transported him to the job site and; (4) from which Keebler proceeded directly home at the conclusion of his work at this site.

Relying on the Restatement (Second) of Agency § 228 as well as two decisions dating back to the 1940s, the Court found that sufficient evidence existed from which a jury could conclude that Keebler’s travel home from the job site was a “necessary and important” part of his employment with A&J Builders, and that the accident therefore could have occurred within the scope of Mr. Keebler’s employment. See U.S. v. New Jersey Mfrs. Co., 583 F. Supp. 579, 581 (E.D. Pa. 1984). In so finding, the Court denied A&J Builders’ Motion for Summary Judgment in what appears to be a decision backed by a broad interpretation of facts that would permit a jury to resolve the scope of employment issue.

The Supreme Court of New York Revisits Assumption of Risk Doctrine in the Context of Motocross Racing

Written by: Ruhani K. Aulakh, Law Clerk
Edited by: Patrick J. Graham, Esq.

The Supreme Court of New York, Appellate Division recently clarified the assumption of risk doctrine as it relates to sports participants.  In Fritz v. Walden Playboys M.C. Inc., 2023 NY Slip Op 03524 (June 29, 2023), plaintiff Joseph C. Fritz was practicing at the Walden motocross racetrack.  Fritz, who had years of experience riding motocross, took his first practice lap and noticed something was wrong with the track when the back of his bike kicked up irregularly.  Although he knew something was wrong with the track, Fritz performed a second practice lap to see what the issue was.  On this second practice lap, Fritz landed in a deep powder and was unable to gain control of his bike.  As a result, Fritz was thrown over the handlebars and sustained several injuries.

Fritz filed a suit against defendant, Walden Playboys M.C. Inc. (“Walden”).  After discovery, Walden moved for summary judgment, arguing that Fritz’s claims were barred by the assumption of risk doctrine.  Fritz opposed the motion, arguing that Walden created an unreasonable risk of harm by failing to address a hole in the track that was caused by negligent grooming of the track.  The lower court denied Walden’s motion, and Walden appealed the decision.

The Supreme Court reversed the lower court’s decision, holding that Fritz did not set forth a genuine issue of material fact sufficient to defeat summary judgment.  In coming to this conclusion, the Court first looked at the primary assumption of risk doctrine which states that a participant consents to risks that are obvious.  Further, to determine whether the assumption of risk doctrine applies, courts assess the participant’s knowledge of the dangerous condition against the background of his or her skill and experience.  If the moving party satisfies its burden to show that a party assumed the risk, the non-moving party is then required to show that the party unreasonably enhances the danger or created conditions which were unique compared to those inherent in the activity.

The Court looked to both Fritz’s and Walden’s testimony to determine whether Fritz set forth a genuine issue of material fact.  The record established that Fritz was a motocross expert with several years of experience on different racetracks, including the Walden racetrack.  Fritz was aware that holes develop on a racetrack but testified that the dirt used to fill in the hole was different than anything he had seen before.  Walden provided testimony of several club members who collectively testified that the dirt used in repairing the hole came from the pits on the track’s property and that the conditions of the track change every five to ten minutes.  Walden’s expert witness further echoed the club members’ testimony, explaining that motocross riders consistently encounter changing conditions that are unavoidable.  The Court held that such testimony was sufficient to satisfy Walden’s burden.

Since Walden satisfied its burden to show that the non-moving party assumed the risk, Fritz then had to demonstrate that Walden unreasonably enhanced the danger or created a condition above those inherent in the activity.  Fritz argued that because of the location of the hazard, he would not have been able to see the hazard without driving back onto the track.  As such, Fritz explained that he had to “feel out” the track on a second lap to determine what the issue is.  The Court held that it was clear Fritz was aware of an unusual condition on the track, but nevertheless continued with his activity.  Therefore, Fritz assumed the risk of riding on a hazardous track.

The Court held that Fritz did not raise an issue of material fact as to whether Walden concealed or unreasonably increased the risks to which Fritz was exposed.  As such, the Court reversed the lower court’s order and granted Walden’s motion for summary judgment.

The “Plain, Ordinary Meaning” of an Automobile Liability Insurance Policy Determines Denial of UIM Benefits Sought by an Injured Pedestrian

In Silva v. Selective Fire and Casualty Insurance Company, 2023 N.J. Super. Unpub. LEXIS 618 (App. Div. April 24, 2023), the New Jersey Appellate Division seized yet another opportunity to give an automobile liability insurance policy its plain meaning where the policy at issue contained clear provisions and definitions for coverage.

Edwin Silva (hereafter “Plaintiff”) was working for a landscaping company that used company vehicles insured by Selective Fire and Casualty Insurance Company (hereafter “Defendant”). On the date of the incident at issue in this case, Plaintiff traveled to a job site in a company vehicle, parked the vehicle, unloaded a leaf blower from the rear of the vehicle and set it down on the roadway approximately two steps from the curb. Plaintiff bent down to start the leaf blower before strapping it on his back when he was suddenly struck by a passing vehicle.

Plaintiff settled with the tortfeasor-driver, but then sought additional underinsured motorist (UIM) coverage from Defendant for his injuries. Defendant denied coverage because it determined that Plaintiff was not occupying the insured vehicle at the time of the incident and the policy only afforded coverage to individuals sustaining bodily injuries while “occupying a covered auto.” “Occupying” was defined in the policy as being “in, upon, getting in, on, out or off of the covered auto…” Following limited discovery, Defendant moved for summary judgment arguing that Plaintiff’s injuries were not covered under the policy. Plaintiff argued in reply that a jury question remained, and it could be determined that he was an occupant of the vehicle if there was a substantial nexus between his proximity to the vehicle and the incident. The trial court denied Defendant’s motion for summary judgment and further discovery ensued.

Following additional depositions, Defendant moved for reconsideration arguing that even when viewing the facts favorably to Plaintiff, Plaintiff was not in the vehicle, had closed the vehicle’s door, had removed equipment from the vehicle, had stepped away from the vehicle, was no longer touching the vehicle and was ready to begin working away from the vehicle. The trial court agreed with Defendant and granted the motion for reconsideration finding “the fact that there was a close proximity to the vehicle, in and of itself, does not carry the day…” Plaintiff was not using the truck for any purpose at the time of the accident and his departure from the vehicle was not momentary or unanticipated, which the court believed was critical to its analysis.

Plaintiff appealed arguing that issues of fact still remained as to whether his proximity to the vehicle was sufficient to classify him as an occupant and as to whether he was an occupant because he was “alighting from or using the vehicle” when the accident occurred.

In affirming the trial court’s decision to grant Defendant’s motion for reconsideration, the Appellate Division began by affirming the long-standing concept that insurance policies are given “their plain, ordinary meaning” and that, when clear, these policies should be interpreted as written. While personal injury protection (PIP) benefits are available under all auto liability policies in New Jersey, it is the plaintiff’s burden to “establish a substantial nexus between the insured vehicle and the injury sustained.” Specifically, the Court noted that “mere proximity to a covered vehicle is insufficient to establish entitlement to coverage.”

The Court ultimately determined that the facts presented were insufficient to establish entitlement to coverage under this policy. Plaintiff’s incident was unlike situations where courts have found that pedestrians were occupying vehicles for the purpose of obtaining benefits, such as where water was being added to a vehicle’s radiator, a vehicle was actively being loaded, a pedestrian was leaning on a vehicle that was subject to a hit and run or where a vehicle was stopped momentarily to help a fellow motorist. Instead, the instant case was more similar to the Appellate Division’s decision in Thompson v. James, 400 N.J. Super. 286 (App. Div. 2008), where a plaintiff walked away from an insured vehicle while it was being fueled when that plaintiff was suddenly struck by a different vehicle. There, the Court found that departure from the vehicle was unrelated to the reason for the stop and was not brief enough for the plaintiff to have been considered a continuous occupant of the insured vehicle.

Finding that Plaintiff was not occupying the vehicle at the time he sustained his injuries, the Court affirmed the trial court’s decision to grant Defendant’s motion for reconsideration and to deny Plaintiff coverage under the policy as having been injured as an occupant of an insured auto. In so ruling, the Court adhered to New Jersey precedent calling for a clearly written automobile liability insurance policy’s plain meaning to govern in coverage disputes.

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