Featured Guests
Joseph Rava

Joseph Rava is a shareholder in the Casualty Department, where his significant experiences in the insurance industry allow him...

Peter Read

Peter is the co-chair of the New York Labor Law Construction Practice Group. He has spent his career defending...

Your Host
John Czuba

John Czuba has 28 years experience in the publishing industry. Since 1994 he has worked for the A.M. Best,...

Peter Read and Jay Rava, Shareholders and Co-Chairs, New York Construction and Labor Law Practice Group at Marshall Dennehey Warner Coleman and Goggin discuss litigating and defending New York construction claims and the most relevant statutes at play with these cases.

Special thanks to our sponsor, A.M. Best CompanyBest’s Recommended Insurance Attorneys & Adjusters, including Expert Service Providers.

Transcript

The Insurance Law Podcast

Defending Construction Claims Under the New York Labor Law Statutes

12/27/2018

[Music]

Intro: This is the Insurance Law Podcast, brought to you by Best’s Recommended Insurance Attorneys.

John Czuba: Welcome to the Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I am John Czuba, Managing Editor of Best’s Recommended Insurance Attorneys.

We are pleased to have with us today attorneys Peter Read and Jay Rava, shareholders and co-chairs of the New York Construction and Labor Law Practice group at Marshall Dennehey Warner Coleman and Goggin law firm.

Peter Read works in the firm’s New York City office and has spent his career defending owners and contractors in construction cases, involving the New York labor law and industrial code. A member of the New York Trial Lawyers Association and the New York Bar Association, he has tried cases throughout the city and state with a remarkable rate of success including a number of defense verdicts.

Jay Rava is a veteran of the insurance and defense litigation industries and has spent the majority of his career defending New York labor law matters on behalf of real-estate developers, general contractors, and subcontractors from intake through trial. He organized, staffed and ran a litigation team dedicated to defending New York labor law matters while Regional Council for Harleysville Nationwide Insurance. Jay is a resident in the firm’s West Chester office.

And Peter and Jay, we’re very pleased to have you with us this morning.

Peter Read: Pleased to be with you, John.

Jay Rava: Thanks for having us, John.

John Czuba: Today’s topic is Defending Construction Claims Under the New York Labor Law Statutes, and Peter, we will start the questions with you today. Can you tell us a little bit about the origin of the New York State labor laws as they pertain to construction accidents and injuries?

Peter Read: Sure, that’s a good place to start. Today’s labor law can be legislatively traced back to the first Scaffold Law, which would be the ancestor of today’s Labor Law 240, which was enacted in 1885 in response to concerns over unsafe conditions for employees working at heights.

This concern came about due to widespread newspaper accounts at the time of rickety scaffolds and ladders resulting injuries and deaths in the construction trade. So, the original law was based on the common law duty of master-servant, so liability lay with employers.

This has since been changed through amendments and Court decisions to place responsibility to provide a safe workplace on owners and general contractors, who are deemed to be in the best position and with the necessary resources to enforce worksite safety. And the original law further recognized the fact that workers due to their weaker economic condition were not in position to insist on safe work practices or conditions.

So, the Scaffold Law throughout its amendments including the current enactment of Labor Law 240 has never explicitly barred contributory negligence as a defense but the New York courts have done that through their decision, beginning in 1948, reasoning that the statute should be interpreted that way if it’s to meet its objective.

The modern iteration of the Scaffold Law is Labor Law Section 240, which was enacted along with Section 241(6) in the late 1960s. Both sections place responsibility for worksite safety on owners and contractors, and again, even though it’s not expressly stated in either statute, it never has, the courts have consistently held going back to the ’40s that these statutes confer absolute liability, and in the case of 240, contributory negligence on the part of an injured worker is not a defense.

John Czuba: Jay, next question for you, what are the three most relevant statutes at play when litigating these types of cases?

Jay Rava: Peter has sort of touched upon two of them. There are three Labor Law Sections 200, 240 and 241(6). Labor Law Section 200 is a codification of the common law, duty of an owner or a contractor to provide a safe workplace to a worker. There are two categories of cases that are evaluated under Labor Law Section 200, the first involve means and methods of the work and the second involve a condition of the premises.

In order to hold a contractor, owner responsible under 200 under a means and methods case you have to show that they had noticed the unsafe practice and procedure and the ability to control it. It means in a condition of the premises case, you need to only demonstrate the 04:44 ailment in notice.

The most widely known law is Section 240, which is commonly called the Scaffold Law. It imposes absolute liability upon owners and contractors and their agents for the failure to comply with the statute’s provisions regarding the protection of workers from gravity related risks.

(00:05:04)

It enumerates various devices that are required, it basically applies to circumstances where workers are subjected to a risk of falling or the risk of an object being of falling upon them. The only viable defense to these claims are that the plaintiff was a sole proximate cause of his accident, it’s a really difficult burden to establish when the defense does have to establish it. All appropriate safety equipment has to be available.

The third law is Labor Law Section 241(6) which imposes a non-delegable duty of care on owners, contractors, and their agents engaged in construction, excavation and renovation projects. In order to get the benefit of that section, the plaintiff has to plead and prove a violation of a specific conduct regulating provision of the industrial code, and that the violation was approximate cause of the accident.

In these cases, under 241(6), the defense does get the benefit of the plaintiff’s comparative negligence. Those are the big three that we face.

John Czuba: Thank You Jay. Peter, for the purpose of the New York Labor Law, what is the difference between a general contractor and a construction manager?

Peter Read: All right, yeah, the difference between a general contractor and a construction manager is that a general contractor by definition is expressly subject to liability under the labor law; whereas a construction manager is mainly subject to liability as an agent of the owner.

So the role of a general contractor is fairly straightforward to identify if you’ve entered into an agreement to run a construction project and to hire the trades across the board on that project, implicit in the hiring of subcontractors is the authority and the ability to control the work which is the basis of liability under the labor law.

A construction manager by contrast has agreed to manage a construction project but does not hire the trades. Nevertheless, there is usually liability exposure to a construction manager as an agent of the owner. This agency issue arises most often in the context of the duties of a construction manager because an actual practice on a jobsite, the role of a construction manager is very similar to that of a general contractor in terms of the overall scheduling of the job and coordination between all trades as to where and when they perform their work.

So, you can call yourself anything you want but what you label yourself is not determinative of the issue of liability under the label law whether it be general contractor or a construction manager or something else. Instead, the courts will analyze the role of a construction manager, for instance, through the terms of its contract to determine whether that entity was delegated the supervisory control or authority over the work that’s being performed.

Generally without express limiting language in the contract stating that the construction manager does not assume responsibility for supervising the work or enforcing safety precautions on the jobsite, there will be a question of fact as to whether a construction manager has undertaken to act as the eyes, ears and voice so to speak of the owner.

And if the answer to that question is, yes, then the construction manager is an agent of the owner and is subject to liability under the labor law. The seminal case on that issue is Walls v. Turner Construction.

John Czuba: Jay, what do you see as the best approach in defending these claims?

Jay Rava: These are difficult claims for defendants and the best way to get a start on these is to do an early investigation, get witness statements early on, make sure that you sequestered in any instrumentalities involved, if you can get sworn statements and photographs, that’s always ideal.

You have to focus as a defense attorney on defeating liability, transferring risk and reducing damages. So the next element is obtaining all relevant contracts if. You are the general contractor, you want to get all the sub-contracts involved. If you are a subcontractor, you want to evaluate your contracts and see what obligations you may owe to a general contractor or an ownership entity.

Each of these entities, including the owners, should have opportunities for risk transfer; if they do, they need to make those tenders early on in the litigation or pre-suit to best protect their economic interest. That’s your first step in trying to transfer risk. After that, there’s the opportunity to bring third-party actions for any common law claims or contractual claims that you have against parties that may be responsible or that may owe you indemnity by contract.

(00:09:58)

You’ve got to then evaluate the claims of the plaintiff, you want to see which of these statutory schemes are at play, is it an absolute liability circumstance, do you have to try to work on getting yourself a sole proximate cause defense, is it a situation that falls under one of the sections covered by 241(6), do you have comparative negligence as an opportunity for a defense.

Once you get into the thick of the litigation, you’re also focusing on reducing damages, you have to take a very detailed deposition of the plaintiff, you want complete pre and post incident medical histories and you have to consider at this point engaging appropriate medical experts to reduce those damages’ claims. It’s important to engage experts who are recognized in their field to counter the surgeons and treaters that the plaintiffs will have on their side.

One of the other things you’re going to do is seek the assistance of an expert in construction site safety or in the particular activity ongoing at the time and that will give you a good opportunity to either seek to defeat the plaintiff’s claims or to enforce claims that you may have against other contractors on the site.

It’s a three-pronged approach and it requires that you commence defending all aspects of the action immediately.

John Czuba: Peter, how do the industrial code rules impact the litigation?

Peter Read: Yeah, well, Labor Law 241(6) was designed to be integrated with Part 23 of the New York Industrial Code. So, the industrial code is a set of rules and regs that are promulgated by the Department of Labor and they set forth specific safety requirements that apply to construction, demolition, and excavation work.

Usually a violation of a rule or regulation even OSHA regulations result merely in some evidence of negligence and making out a case but not negligence per se, that’s not the case with the New York Industrial Code because by operation of Labor Law 241(6), a violation of a sufficiently specific industrial code rule is negligence per se.

To put it another way, the industrial code is the basis for a claim under Labor Law 241(6). So a claim under that section must be predicated on a proof of an industrial code violation and the proof that the violation was approximate cause of the accident.

The caveat to that is that in order to make out a claim under 241(6) based on the industrial code, there must be a violation of an industrial code section which contains a sufficiently specific safety directive. For instance, Section 23-1.5 is entitled General Responsibilities of Employers, and that section just states merely that all work sites shall be operated and equipped et cetera, so as to provide adequate protection for the safety of all workers.

This has been held as a matter of law to be too general and therefore insufficient to support a claim under Labor Law 241(6). But generally, the code contains many sections with very specific directives. For example, just randomly Section 1.22 governing platforms at a jobsite requires that platforms must be constructed with planks of at least 2 inches thick.

So, obviously, if you have an accident at a worksite where a worker falls through a platform and it’s determined after the fact that the platform planks were only a inch-and-a-half thick, you’ve got a clear violation of that section of the industrial code and therefore you’ve got a cause of action on the Labor Law Section 241(6).

John Czuba: Thank you, Peter. Jay, our final question for you, have you employed any creative methods or strategies in defending these types of claims?

Jay Rava: We have. But I’ll predicate this by saying that there’s really no substitute to being incredibly detailed in your investigation and in your discovery depositions. But we’ve had cases where we’ve used experts creatively and effectively. In one instance, we had a case where a plaintiff claimed that a spreader on his ladder broke which caused him to fall and tip over and for him to be injured by that.

We engaged an expert who was a former design engineer for a well-known ladder company, he tried to recreate the plaintiff’s accident in a manner and he did it while taking a video. He had him standing on the same make and model of ladder and he had a colleague strike the spreaders while he was on it, striking them both off of the ladder and despite the absence of the ladder, ladder had been designed to sustain that sort of defect and it was still standing. So, it showed that there was a real question as to whether the accident could have occurred as the plaintiff claimed.

(00:15:01)

We’ve used investigation and surveillance as ways to show that plaintiffs were more active than they claimed to be, this is often the case because these cases in New York take a good deal of time to develop and it’s where that somebody literally sits inside and simply goes back and forth to treatment.

The other thing that people are doing in virtually every personal injury litigation today is using social media, Facebook posts, Instagram posts as ways to show that the plaintiffs’ activities are more extensive than they claim or their characters is less than stellar.

Another source of information that is sometimes overlooked are workers’ compensation decisions, you may find in a settlement with workers’ compensation that the plaintiff has made a representation that his future medical costs are ten thousand dollars whereas the experts in the case that he’s bringing against you in State Court are claiming that he’s got hundreds of thousands of dollars of future medical costs.

So, you have to try to dig for every piece of information available to you and then try to use that in the litigation to benefit yourself on liability and on damages.

John Czuba: Thank you both very much for joining us today.

Jay Rava: Thanks for having me.

Peter Read: Thank you, John. I appreciate the opportunity. Thank you.

John Czuba: That was attorneys Peter Read and Jay Rava, shareholders and co-chairs of the New York Construction and Labor Law Practice Group at Marshall Dennehey Warner Coleman and Goggin law firm, and special thanks to today’s Producer, Frank Vowinkel.

And thank you all for joining us with The Insurance Law Podcast. To subscribe to this audio program, go to our webpage, www.ambest.com/claimsresource.

If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected].

I am John Czuba, and now this message.

Outro: Best Insurance Professionals and Claims Resource is the top website for locating qualified professionals and need to know insurance information for the claims market, brought to you by A.M. Best, the world leader in insurance industry information. Visit ambest.com/claimsresource.

Brought to You by
Episode Details
Published: December 27, 2018
Podcast: The Insurance Law Podcast
Category: Business Law
Podcast
The Insurance Law Podcast
The Insurance Law Podcast

The Insurance Law Podcast features discussions with leading insurance attorneys about timely industry issues.

Listen & Subscribe
  Apple Podcasts
  Google Play
More Episodes
12/27/18
Defending Construction Claims Under the New York Labor Law Statutes

Attorneys address New York construction claims, how the Industrial Code Rules impact litigation and strategies in defending these claims.

11/28/18
Managing the Expense of Electronically Stored Information (ESI) Discovery Claims

Attorney addresses planning for ESI claims and mitigating related expenses.

10/25/18
How Expert Witnesses Should Handle Attempts to Ghost Write Reports and Impact on Liability Claims

Legal ramifications for claims cases when a ghost written expert report is revealed.

09/26/18
Toxicology: A Small Dose of Science for Attorneys and Insurance Claims Professionals

A toxicologist discusses impact of toxicology on legal cases.

08/29/18
Vehicle Modification and Impact on Claims

Dan Thompson of DeeGee Rehabilitation Technologies addresses the cost issues, claims impact and future of vehicle modification.

07/31/18
Emerging Global Cyber Ransom Threats Require a Strategic Response From the C-Suite

Ed Lewis, David Mackenzie, and David Shannon discuss emerging cyber threats and associated global risks.