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The confusing and controversial galaxy of labor law litigation became perhaps a little more confusing and a little more controversial last week with a directed verdict in a seminal case. On Wednesday, Supreme Court Justice Bernard J. Malone Jr. of Albany, N.Y., directed a verdict in Bauer v. The Female Academy of the Sacred Heart, a decision that in effect restores a $3.3 million verdict in favor of an unharnessed window washer who fell from the third floor of a private school. Bauer is the case where the Court of Appeals in March established two critical principles of labor law: that a plaintiff can simultaneously maintain actions under �� 202 and 240; and that � 202, unlike � 240, is not a strict liability provision and therefore comparative negligence is available as a defense. The case has generated considerable commentary from judges and scholars, as well as considerable consternation among labor law practitioners. Justice Malone granted a motion by the plaintiff’s attorney, Stephen R. Coffey of O’Connell and Aronowitz in Albany, for a directed verdict. That brought to a conclusion the latest chapter in a case that has been before Justice Malone three times, with diversions to both the 3rd Department Appellate Division and the Court of Appeals. Jeffrey N. Miller of Friedman Hirschen Miller & Campito in Schenectady, N.Y., counsel for the school, said another appeal is possible. “I was very surprised the court took it away from the jury,” he said. “I don’t know where this leaves [the law]. The Court of Appeals has already determined that � 240 theoretically applies to the facts of a window washer falling out of a window. The issue in this case, had it gone to the jury, would have been whether we provided adequate protection and whether or not the plaintiff’s own conduct was the sole proximate cause. But we never got an opportunity to get that determination.” Regardless of whether Justice Malone’s directed verdict is appealed, there is another lingering question of intense interest to the parties: the date on which interest accrues. If that date is when the first verdict is rendered, the plaintiff is owed more than three years of interest at 9 percent — or about another $1 million. BACKGROUND The case stretches back a decade when Keith Bauer was washing windows at The Academy of the Sacred Heart in Albany. Evidence showed that Bauer was restrained by a safety harness when washing a window. However, while perched on the window sill and attempting to unleash the belt from exterior hooks, he fell about 40 feet, landing on his feet and gravely injuring his back and ankles. Bauer sued under � 240, which imposes absolute liability for elevation-related risks, and � 202, which specifically applies to window washers. Initially, the case was assigned to Justice Victoria A. Graffeo, who was subsequently promoted to the Appellate Division, 3rd Department, and now sits on the Court of Appeals. Justice Graffeo denied a defendant’s motion to dismiss the � 240 claim, a motion based on the argument that � 202 offered an exclusive remedy. That decision was appealed to the 3rd Department, which reversed in a 3-2 opinion. The matter was then tried before Justice Malone as a strict liability case under labor law � 202. Section 202 was clearly a strict liability statute when it was enacted in 1930. At trial, Justice Malone advised the jury that Sacred Heart and Bauer’s employer, Environmental Service Systems Inc. (ESS), were liable as a matter of law because the safety devices on the exterior of the building were not in compliance with standards adopted by the Industrial Board of Appeals. The jury was left only with the question of whether the defendants’ breach of their statutory duty under � 202 was a substantial factor in the accident. It returned a verdict of more than $3.3 million and apportioned 80 percent of the liability to ESS and 20 percent to Sacred Heart. DECISION REVERSED A 3rd Department panel other than the one that had decided the first appeal split 3-2 in reversing Justice Malone. The majority held that while � 202 was a strict liability statute when it was first enacted, it was converted to a comparative negligence statute several decades later. That resulted in a second trial, and a no cause verdict. The stage was set for a third trial in a year when the Court of Appeals in March agreed that � 202 became a comparative negligence statute in 1970 when an amendment authorized the Industrial Board of Appeals to impose safety standards. However, while undercutting Bauer’s � 202 claim, the court reinstated his equally if not more potent � 240 claim. It is unclear why a plaintiff, with the availability of a diluted � 202 claim plus an absolute liability claim under � 240, would now bother pursuing a suit under labor law � 202, attorneys said. Regardless, the court’s decision left the defendant with but one quill: an opportunity and burden of showing that the plaintiff’s conduct was the sole cause of the accident. Miller said he was denied that opportunity by the directed verdict. Justice Malone directed the verdict after reviewing decisional law indicating that such matters are generally submitted to juries only when there is a recalcitrant worker or a misuse of equipment, which the court said was not the case here. In this case, the evidence showed that the exterior hooks to which Bauer’s harness was attached were square even though the state in 1950 required standard, round hooks. Essentially, Bauer was attempting to extricate a round peg from a square hole, and in struggling with the device lost his balance and fell from a window sill he was straddling. Bauer testified he was unaware that he could have adjusted the belt to provide himself the slack needed to step entirely inside the school building while attempting to unhook the strap. Justice Malone found that the facts and circumstances mandated a directed verdict. The award of damages from the first trial was not appealed, and Coffey and Miller agree that the directed verdict Wednesday evening reinstates the $3.3 million award. Where they are likely to disagree, however, is on the issue of accrual of interest. Coffey said he will seek interest back to the date of the initial verdict.

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