23 May 2011

When good dogs go bad

A creepy abundance of decisions from the last Fourth Department packet involving domestic animals turning on their human minders and inflicting all manner of injury and mayhem.  Like the dog who invaded the next yard over and chased his neighbor into his house, causing the neighbor to trip "over the threshold of his front door and injure his knee." (Barone v Phillips, 2011 NY Slip Op 03395 [4th Dept 2011].)  Or the dog who ran into the road and caused a motorcycle accident.  (Rockwood v Labate, 2011 NY Slip Op 03406 [4th Dept 2011].)  Or the dog who "ran into the road and collided with plaintiff's bicycle, causing plaintiff to be propelled over the handlebars."  (Smith v Reilly, 2011 NY Slip Op 03357 [4th Dept 2011].)

And its not just dogs.  Even baby horses are up to no good these days.  (Krieger v Cogar, 2011 NY Slip Op 03433 [4th Dept 2011] [six-day old colt knocked a woman to the ground].)

So when is an owner liable for the wanton destruction caused by Fido?  The rule is the same no matter the type of domestic animal, and hinges on what the animal owner knew or should have known about his animal's ability and inclination to get up to mischief.  "It is well settled that 'the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.'"  (Barone, 2011 NY Slip Op 03395.)  The term "vicious propensities" does not really have its plain meaning under the case law--your dog does not have to be the second coming of Cujo for liability to attach.  "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities--albeit only when such proclivity results in the injury giving rise to the lawsuit."  (Id. at *1.)

So:  the owner of the dog with a history of charging the road is potentially liable for causing an accident.  (Smith, 2011 NY Slip Op 03357.)  No liability attaches to the owner of a dog who is usually kept securely fenced, and pulled a Houdini for the first time on the day of the accident.  (Rockwood, 2011 NY Slip Op 03406.)  And the owner of the dog who charged his neighbor and causing him to bravely flee into his own home is not liable where the record contained "no evidence suggesting that the dog had a propensity to run at people."  (Barone, 2011 NY Slip Op 03395, although Justice Gorski dissented and would have found the dog's history of playfully jumping on people established enough of a propensity to survive summary judgment.)

The same rule extends to horses, who are considered "domestic animals" under the Agriculture and Markets Law, and that's good enough for the Fourth Department.  A six-day-old colt that exhibits normal "avoidance" behavior while being halter trained--described clinically (but still sort-of-heart-breakingly) by the Court as a newborn colt's tendency "to avoid human contact and seek the protection of his mother"--does not have vicious propensities that would expose his owner to liability.  (Krieger, 2011 NY Slip Op 03433.)        

03 May 2011

Labor Law update

Cases interpreting and applying New York's Labor Law are legion, largely fact-specific, and in isolation, not particularly helpful. The whole body of law sort of creeps along, a great blob oozing its way over the casebooks and search engines and annotations. Rather than pull individual cases from the sludge, I present them the way God and the appellate courts intended: as one big pile. But every pile has a top, so we start with the most recent offering from the Court of Appeals, followed by the latest from the Fourth Department.

A front-end loader = power shovel /backhoe

St. Louis v Town of North Elba, 2011 NY Slip Op 02481

Plaintiff was part of a crew laying "twenty foot sections of snow-making pipe" at a winter sports complex in Lake Placid, New York. The crew suspended "one of the pipe sections in the air during the welding" process by means of a hydraulic clamshell clamp suspended from the bucket of a front-end loader. The plaintiff stood beneath the pipe, and banged the freshly welded seams with a hammer to remove excess metal. You can predict the result: the clamp opened, the pipe dropped, and plaintiff was pinned to the ground.

Plaintiff argued that the owner of the complex was liable under Labor Law 241(6) for failure to "comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." The specific safety regulation at issue was 12 NYCRR 23-9.4[3], but that regulation only applied to "power shovels and backhoes" that are used for material handling. The regulation required that any load suspended from the bucket of a shovel loader or backhoe be secured by wire rope.

The owner of the sports complex argued that the pipe at issue was suspended from the bucket of a front-loader, and not from the bucket of a backhoe or a shovel loader, and therefore the regulation did not apply and, by extension, there was no violation of Labor Law 241(6). The Court of Appeals rejected this narrow reading, instead holding that the function of the equipment, and not its name, was determinative. From the opinion:

[T]he preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code.
Judge Smith dissented, and would have read the regulations literally. He notes that the majority's approach "makes no sense at all in the context of a statute whose whole point, as we have interpreted it, is to give a remedy only for violation of a regulation's specific commands."

Refrigerator repair covered under Labor Law 240(1)

Ozimek v Holiday Valley, Inc., 2011 NY Slip Op 02568

The plaintiff in Ozimek "fell from a ladder while working on a commercial freezer" when the ladder allegedly slid out from under him. The defendants argued that Labor Law 240(1)--imposing strict liability on property owners for injuries sustained by workers < etc >--did not apply because plaintiff was engaged in routine maintenance in a non-construction, non-renovation context." The Court agreed with the general rule exempting routine maintenance, but held that plaintiff was "investigating a malfunction," and such activity is not merely routine maintenance and is therefore protected by Labor Law 240(1). Defendants survived plaintiff's cross-motion for summary judgment, however, by submitting the affidavit of a witness that observed plaintiff fall because he simply "missed the ladder" when descending from the refrigerator.

The Court also held that the operator of the freezer was entitled to summary judgment on plaintiff's claims under Labor Law 200. Unlike the other sections of the Labor Law, section 200 merely codifies the "common law duty imposed upon an owner or general contractor to maintain a safe construction site," and does not impose strict liability. The operator of the freezer had no control over the premises where the action occurred, and therefore could not be held liable under section 200.

Down in a hole

Kobel v Niagra Mohawk Power Corp., 2011 NY Slip Op 02581

Plaintiff Tim Kobel "slipped and fell backwards while working at the bottom of a manhole." Niagra Mohawk owned . . . the hole, I guess. Plaintiff alleged violations of Labor Law 200 (general duty of owner to provide safe work site), and two claims under 241(6) (violation of specific regulations, in this case a regulation prohibiting work on a slippery surface and a regulation prohibiting work around hazardous openings). The trial court refused to grant NiMo summary judgment on any ground.

The Fourth Department affirmed in part. The Court kept alive the section 200 claim because NiMo failed to establish as a matter of law that it did not have actual or constructive notice of the dangerous condition at the bottom of the manhole. The Court also allowed the plaintiff to proceed under section 240(6) for a violation of the regulation prohibiting work on slippery surfaces, noting that the surface itself does not need to be elevated for the regulation to apply and that the regulation was sufficiently specific to support liability under section 240(6).

The Court did reverse, however, and grant NiMo summary judgment on one ground, holding that the "sump hole" plaintiff stepped in at the bottom of the manhole was not a "hazardous opening" under the regulations.

On the Catwalk

Timmons v Barrett Paving Materials, Inc., 2011 NY Slip Op 02605

It is a great irony that so many plaintiffs seeking protection of the Labor Law--a statutory scheme that seeks to encourage safe practices at construction sites--engage in some truly reckless practices. Enter plaintiff Timmons. He tack-welded a cat-walk in place, and discovered after doing so that the whole structure was tilting a bit to starboard. Rather than un-tack the weld and try again, "Timmons' coworker attempted to level the catwalk by pushing down on it with a manlift while Timmons, who was standing on a lower catwalk, prepared to weld a support gusset underneath the tack-welded catwalk."

This worked out about as well as you would expect. The cat-walk broke free, striking Timmons and pinning him between the catwalks. The Fourth Department held that Labor Law 240(1) did not apply, because the catwalk was "not an object being hoisted or secured," i.e. there was no elevation-related risk.

The Court went on to hold that the owner could not be held liable under Labor Law 200 because, while the owner's plant superintendent generally oversaw the work and was generally in charge of job safety, such a general oversight duty is not sufficient to hold the owner liable for "dangerous conditions aris[ing] from the contractor's methods."