Brian J. Shoot ()
Section 500.11 of the Court of Appeals’ rules (22 NYCRR 500.11) sets forth an “alternative procedure” which the court can utilize to resolve an appeal that, in the court’s view, does not warrant full briefing and argument. In lieu of submitting new briefs and of then appearing for oral argument, each party submits a letter “stating its arguments.” The Court of Appeals then decides the matter based upon those letters and the parties’ appellate division briefs.
One advantage of the alternate procedure is that the appeal is often decided more quickly than would otherwise occur. One disadvantage is that the resultant ruling, which is almost invariably unanimous, is usually nothing more than a sentence or two and is sometimes so short of explanation and context as to border on cryptic. In such instances, one cannot intelligently analyze the high court ruling without also examining the lower court rulings and often the lower court briefs as well. Even then, while one may know that the state’s highest court definitively resolved an issue that split the appellate division panel, the careful reader may not be able to discern what, precisely, the Court of Appeals meant.
With that preamble, I here consider the Court of Appeals’ two most recent rulings in the field of construction accident litigation, each rendered pursuant to §500.11 review.
Defective Scaffold: ‘Batista’
Assume, if you will, that the plaintiff-worker was testing the strength of a scaffold, that one of the scaffold planks broke as he or she did so, and that the plaintiff was thus caused to fall. Now further assume that it was plaintiff who constructed the scaffold, and that he or she purportedly disregarded instructions and used the wrong kind of wood in doing so.
Does the plaintiff win as a matter of law because the scaffolding was defective? Does he or she lose as a matter of law because it was plaintiff who rendered the scaffold defective? Or should the case instead be resolved by a jury? Although one would never know this from a reading of the Court of Appeals’ two-sentence ruling in Batista v. Manhattanville College, 28 N.Y.3d 1093 (2016), mod’g 138 A.D.3d 572 (1st Dept. 2016), that was the basic scenario presented therein.
In Batista, defendants argued in their appellate division briefs that the plaintiff, who was a foreman, was negligent in using spruce planks rather than heavier pine planks for the scaffold’s floor. They also urged that the proper way to test a scaffold plank was to jump on it while the plank was no more than six inches off the ground, this as opposed to waiting until the scaffold has been assembled.
In defendants’ opinion, plaintiff’s misdeeds in those and other respects constituted “the sole proximate cause” of the subject accident. Further, while plaintiff claimed that there were not enough pine planks on site (which defendants denied), defendants urged that any such shortage was also the plaintiff’s sole fault since he was purportedly the individual who was responsible for ordering the supplies.
The defendants contended both in their appellate division briefs and in their Court of Appeals letter that the case was not distinguishable from the situation in Cahill v. Triborough Bridge and Tunnel Auth., 4 N.Y.3d 35 (2004). That was a case in which the Court of Appeals upheld a jury verdict in the defendants’ favor on the ground that the jury could have properly concluded that the plaintiff-worker had been provided “specific instructions to use a safety line when climbing” but “chose to disregard those instructions … for no good reason” (4 N.Y.3d at 39-40).
Plaintiff responsively maintained that while “pine planking was preferred when available, and would be substituted if the job had not gone too far,” there was “no hard and fast rule prohibiting the use of spruce planking” in scaffolding, that he had therefore not engaged in any “prohibited act,” and that his alleged misdeeds therefore amounted to “mere comparative negligence.” Plaintiff further urged that it was the defendant’s responsibility to provide adequate and appropriate materials and safety devices, not the plaintiff’s responsibility to insure that there were sufficient and suitable planking on-site.
The Appellate Division, First Department, unanimously ruled that neither side was entitled to summary judgment regarding the plaintiff’s Labor Law §240 cause of action. In so ruling, the appellate division said there were “issues of fact,” (1) “whether plaintiff disregarded instructions to use only pine planks for flooring on the scaffold he was constructing … or otherwise knew that only pine planks were to be used for flooring,” (2) “whether more pine planks were readily available to him either at the site, as his supervisor testified … or at his employer’s yard, as a coworker testified,” and (3) “whether plaintiff was responsible for checking the planks at the site for knots and whether he used one with a knot it in, which he should not have used, for flooring” (138 A.D.3d at 572). The obviously implied assumption was that the plaintiff either would lose or at least could lose if the jury resolved one or more of the disputed issues of fact in the defendants’ favor (e.g., if plaintiff had “disregarded instruction to use only pine planks”).
On further appeal, the Court of Appeals unanimously ruled that plaintiff should have been granted “partial summary judgment on the issue of liability on his Labor Law §240(1) claim.” The one-sentence explanation for the ruling was, in its entirety: “Defendants failed to raise a triable issue of fact whether the plaintiff was the sole proximate cause of his accident.” The question, however, is what the Court of Appeals meant.
Regarding the defendants’ claim that plaintiff had disregarded a specific direction to use pine planks rather than spruce planks, did the court mean (1) there was legally inadequate proof that plaintiff had been specifically instructed to use only pine planking, or (2) disregard of such an instruction could not of itself render plaintiff “the sole proximate cause of his accident.”
Similarly, in this case in which defendants blamed plaintiff for failing to order more pine planks, did the court mean (1) there was insufficient proof that such responsibility fell within the plaintiff’s work duties, or (2) such conduct could not of itself render the plaintiff “the sole proximate cause of his accident” even if he was the individual tasked with ordering supplies.
The answers, I’m afraid, lie largely in the eye of the beholder.
Ladders and Shocks: ‘Nazario’
In Nazario, which the Court of Appeals also resolved on the basis of its “alternative procedure,” plaintiff was performing electrical work while “standing on the third or fourth rung of a six-foot A-frame wooden ladder, when he received an electric shock from an exposed wire.” Nazario v. 222 Broadway, 135 A.D.3d 506, 507 (1st Dept. 2016), modified 28 N.Y.3d 1054. Plaintiff was thus caused to fall from the ladder. The ladder fell as well inasmuch as (1) plaintiff continued to hang on to the ladder as he fell, and (2) the ladder “was not secured to something stable” (id. at 508).
The question which split the First Department was whether such facts of itself established a violation of Labor Law §240, entitling the plaintiff to summary judgment.
The First Department majority ruled in the affirmative, reasoning that plaintiff fell in part because the ladder was not “secure” and “[t]he lack of a secure ladder is a violation of Labor Law §240(1) …” (id. at 508). Presiding Justice Peter Tom wrote that he was “constrained” to concur with the majority’s ruling by virtue of other First Department decisions that had involved similar accidents (id. at 510) but that he felt those cases had been wrongly decided (id. at 512-13). In his view, the plaintiff was obligated to prove not merely that he had not been provided with a safety device to prevent him or her from falling but also that there was “[a] need for such protective device …” (id. at 512). He also concluded that, specifically with respect to the case before the court, it was “far from clear that the provision of a device enumerated in Labor Law §240(1), or any similar safety device, would adequately protect against a force quite capable of knocking a worker from even the best ladder or scaffold …” (id. at 515).
On further appeal, the Court of Appeals reversed the grant of summary judgment, stating: “Questions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices.”
The ruling, devoid of any further explanation, raises some obvious questions. How, one might ask, would a party prove that additional safety devices were required, or, alternatively, that they were not required? Is that something a jury can decide in the absence of expert opinion, or is such opinion required to prove or disprove the claim? When, if ever, can the issue regarding the sufficiency of the protection be resolved as a matter of law? However, those are all questions for another day, for the Court of Appeals’ explanation was no more than that which I have already quoted in full.