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After three trials, two trips to the New York Appellate Division, one journey to the New York Court of Appeals and a rare directed verdict, a pivotal case involving window washers and strict liability has been settled for $2.8 million. Now that Bauer v. Female Academy of the Sacred Heart is resolved, it is apparently the leading case in New York on the applicability of the strict liability provisions of Labor Law � 240 in matters involving window washers. At the center of the case is the interplay between � 240, which addresses elevation-related risks, and � 202, which covers window washers. In March, the court of appeals held in this case that � 240 and � 202 claims may be asserted simultaneously, but that comparative negligence principles govern in a Labor Law � 202 matter. The case has generated considerable commentary from judges and scholars as it involved a number of Labor Law issues that remained unclear. It began in 1992, when window washer Keith Bauer tumbled from the third floor window of a private school in Albany. Bauer had been restrained by a safety harness. However, while perched on the sill and attempting to unleash the harness, he fell, suffering severe back and leg injuries. Bauer sued under both the strict liability provisions of Labor Law � 240 and Labor Law � 202, which was enacted specifically to protect window washers. The defendant moved to dismiss the � 240 claim, arguing that Bauer’s exclusive remedy resided under � 202. Then-Supreme Court Justice Victoria A. Graffeo denied the motion and was reversed in a 3-2 opinion of the Appellate Division, 3rd Department. Justice Graffeo was subsequently designated to the 3rd Department bench and ultimately appointed to the Court of Appeals, where she is now an associate judge. JURY RETURNS VERDICT At trial, with only the � 202 claim surviving, an issue emerged as to whether that section still imposed strict liability, as it clearly had when it was enacted in 1930. Supreme Court Justice Bernard J. Malone Jr. found that � 202 did impose absolute liability, and so instructed the jury. The jury returned a verdict of $3.3 million on behalf of the plaintiff, and the parties made another trip to the 3rd Department. In another 3-2 decision, the 3rd Department reversed Justice Malone, holding that � 202 ceased to be a strict liability statute in 1970, when it became a comparative negligence statute. At retrial, the jury concluded that the accident was caused by Bauer’s own negligence and found for the defendants. The plaintiffs then appealed to the court of appeals, arguing that if � 202 had indeed become a comparative negligence statute, then window washers should also have the opportunity to pursue a strict liability claim under the � 240 provisions for elevation-related accidents. In a 6-0 decision — Judge Graffeo did not take part — the court of appeals agreed and remitted. Two days into the third trial, Justice Malone directed a verdict in favor the plaintiff. That, in effect, restored the $3.3 million verdict. However, issues remained as to whether a directed verdict is appropriate where the defendant sought an opportunity to prove that the plaintiff’s own conduct was the sole cause of the accident, and whether interest accrues as of the date of the first verdict. If so, that would have added three years of interest at 9 percent, or roughly $1 million, to the recovery. With the settlement, those issues are unresolved — but the � 202 versus � 240 controversy was settled by the New York Court of Appeals. Appearing were Stephen R. Coffey and Tina Chericoni Versaci of O’Connell and Aronowitz in Albany, N.Y., for Bauer, and Jeffrey N. Miller of Friedman Hirschen Miller and Campito in Schenectady, N.Y., for the school.

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