Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Construction Accident

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safetypaysfallscost-2.jpgOn April 10, at 11 a.m. EST, OSHA’s Director of Construction Jim Maddux, and NIOSH’s Director of Construction Safety and Health, Dr. Christine Branche, will co-moderate a webinar to discuss ways of stopping the leading killer of construction workers – falls from heights. To register for the free webinar and to learn more about efforts by OSHA, NIOSH, and CPWR to protect construction workers from fatal falls, visit the registration page.

This seminar is part of of a nationwide outreach campaign by OSHA to prevent falls in construction sites. The theme of the campaign is – PLAN ahead to get the job done – PROVIDE the right equipment – TRAIN everyone to use equipment safely These says OSHA are three simple steps to reduce the number of falls and save lives.

Falls are the leading cause of death among constrcution workers. According to the most recent statistics of the LBS in 2011, falls accounted for 541 fatal work injuries.

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The talus bone is one of the most important bones of the ankle joint. It is the rounded bone at the top of the foot. Because of its location, the talus can be easily fractured after falls from heights such as falls from ladders and scaffolds in construction accidents or after a severe impact to the foot such as those caused by a motorcycle, a truck or a car accident. Some subtle fractures can be misdiagnosed as ankle strains as the symptoms are very similar: acute pain, swelling and bruising. A talus injury can severely limit the ability to walk and bear weight. Delays in treatment can result in long term disability and surgery.

In the following video segment, Dr Nabil Ebraheim, Professor and Chair of Orthopedic Surgery at The University of Toledo Medical Center, demonstrates the different types of talus fractures.

https://www.youtube.com/watch?v=OxehxKzWH88

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By Anthony Gair;

(A) THE RECALCITRANT WORKER DEFENSE
(1) A BRIEF HISTORY

In order to understand the break from precedent by the Court of Appeals in 2004, it is useful to understand the history of the recalcitrant worker defense. For years the leading recalcitrant worker case was Smith v. Hooker Chemicals and Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th dept. 1982); app. dismd. 58 N.Y.2d 824. The rule enunciated therein was that the “….the statutory protection (afforded by §240) does not extend to workers who have adequate and safe equipment available to them but refuse to use it.”

The facts in Smith are important in order to understand how the Court of Appeals in decisions between 2004 and 2009 expanded the reach of the recalcitrant worker defense by relying on cases such as Smith, while ignoring the facts upon which the holdings were based, thereby in effect failing to follow long established precedent.
For example, in Smith the plaintiff went up on a roof despite the fact that safety equipment had been removed and after a co-worker had refused to do so unless the safety equipment was put back in place.

The Court’s holding was thus based on the fact the plaintiff knowingly chose not to use safety devices which he knew had been in place and were readily available. His accident was also contemporaneous in time with his refusal to use the safety devices which his co-worker insisted be in place before the co-worker got on the roof.

The Court of Appeals followed the reasoning of Smith for years, as did numerous Appellate Division cases.

In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) the plaintiff was standing on a ladder leaning against a railroad car while using a hand-held sandblaster to clean the exterior of the car. He was injured when he fell from the ladder. In rejecting the defendant’s claim that the plaintiff was a recalcitrant worker, the Court stated:
“Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”
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In this presentation Anthony Gair, covers the State of the Law of New York Construction Site Accidents – Labor Law Section 240 as of December, 2012.

This video is from “Construction Site Accidents: The Law and the Trial 2012” seminar by the Continuing Legal Education program of the New York State bar Association in December 2012.

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In this video, New York Construction Accident Lawyer Howard Hershenhorn explains how to prepare for the opening statement. He also delivers an example of opening statements for both the plaintiff and defendant based on an accident which occurred at a building renovation project.

This video is from “Construction Site Accidents: The Law and the Trial 2012″ seminar by the Continuing Legal Education program of the New York State bar Association in December 2012.

http://www.youtube.com/watch?v=uO1K6UJgowg

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In this video, New York injury lawyer Ben Rubinowitz demonstrates direct examination by plaintiff’s attorney of an adverse witness. In this example Chris Sallay plays the witness, Robert Hoover, a site foreman with experience in the construction industry.

For the fact pattern upon which this is based click on extended entry.
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In this one hour and a half Lawline.com Webnar Anthony Gair discusses the current state of New York Construction accident law under Section 240(1) of The New York State Labor Law.
Among the topics discussed are a brief history of Section 240, the most important cases over the last several years, the sole proximate cause defense and the current state of falling worker/falling object cases among other topics.

To view this course for free or for CLE credit click here for Lawline.

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By Anthony H. Gair;

In Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 (Ct. Apps. 2011) The New York Court of Appeals rejected The Same Level Rule first enunciated by The Court in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995]. The Rule precluded recovery under Labor Law §240(1) where a worker sustained an injury caused by a falling object whose base stood at the same level as the worker.

In order to understand the holding in Wilinski, one must consider what was transpiring at The Court at the time of the decision. There was an obvious philosophical difference with regard to the reach of 240(1). Judge Piggot led a faction consisting of him and Judges Graffeo and Read who interpreted 240(1) more restrictively and a faction led by Judge Lippman together with Judges Ciparick and Jones who interpreted 240(1) more liberally with Judge Smith as the swing vote. With the untimely death of Judge Jones and the retirement of Judge Ciparck at the end of the year it will be an interesting 2013 regarding The Court’s holdings in 240(1) cases. The majority opinion was written by Judge Ciparick who also wrote the opinion in Misseritti. She was joined by Judges Lippman, Jones and Smith.

In Wilinski The plaintiff and co-workers were demolishing brick walls at a warehouse. Previous demolition of the ceiling and floor above had left two vertical plumbing pipes unsecured. The pipes rose from the floor on which plaintiff was working approximately ten feet. Debris from a nearby wall that was being demolished hit the pipes causing them to fall over both of which struck the plaintiff who was 5’6″ tall. The Court stated the pipes thus fell approximately four feet. In rejecting the same level rule Judge Ciparick writing for the majority stated:

“Some New York courts have interpreted our decision in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995] to preclude recovery under Labor Law §240(1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240(1). However, in this case, an issue of fact exists as to whether the worker’s injury resulted from the lack of a statutorily prescribed protective device.”

In explaining why, in its opinion lower courts had been misinterpreting Misseritti, Judge Ciparick stated:

“In Narducci v. Manhasset Bay Assocs., (96 NY2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]), though we noted that section 240(1) applies to both ‘falling worker’ and ‘falling object’ cases, we declined to impose liability where a plaintiff was cut by a piece of glass that fell from a nearby window pane (id. at 267). We concluded that ‘[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected’ and that the absence of such a device ‘did not cause the falling glass here’ (id. at 268-269). Therefore, the accident was outside the scope of section 240(1) (see id.).

In Misseritti, we applied a similar rationale. The plaintiff’s decedent in that case sustained severe injuries, leading to his eventual death, when a completed concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, ‘decedent and his co-worker had just dismantled the scaffolding used to erect the completed firewall and . . .[m]asons had not yet vertically braced the wall with the . . . planks it had on the work site’ (id. at 491). We held that section 240(1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240(1) are ‘those used to support elevated work sites not braces designed to shore up or lend support to a ‘completed structure’ (id.). Thus the firewall’s collapse, though tragic in consequences, was simply ‘the type of peril a construction worker usually encounters on the job site.’ (id.).
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one57-crane-thumb

This is a picture of the boom collapse at One57, New York City on October 29, 2012. Given the fact that it was well known that Hurricane Sandy was approaching New York City one has to wonder why this crane boom was allowed to remain partially boomed out. Why didn’t the Crane Contractor lower the boom and properly rig it to avoid this quite foreseeable occurrence.

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Howard S. Hershenhorn and Christopher L. Sallay will serve as Overall Planning Chairs of the New York State Bar Association’s Construction Site Accidents: The Law & the Trial 2012 Seminar. Anthony H. Gair and Ben B. Rubinowitz will also be speaking at the event. Ben B. Rubinowitz is also the chair of the Long Island seminar. The Seminar will be held at the following locations:

Friday, November 30, 2012

– Location –