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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 13-14-00617-CV
Regular Panel Decision
Nov 30, 2015

Ronald G. Hole v. William L. Hubbard

Ronald G. Hole appealed the trial court's grant of summary judgment in favor of William L. Hubbard. Hole had sued Hubbard for defamation per se and alleged violations of the Texas Civil Practice and Remedies Code, Chapter 12, after Hubbard sent a letter stating Hole had no aversion to filing meritless lawsuits. The trial court granted Hubbard's motion for partial summary judgment, finding absolute privilege applied to the complained-of communication, and denied Hole's motion for partial summary judgment. The appellate court reviewed both motions de novo and concluded that Hubbard's letter was made in contemplation of judicial proceedings and to settle a claim, thus falling under absolute privilege immunity. Consequently, the appellate court affirmed the trial court's summary judgment, barring Hole's defamation claim.

Summary JudgmentDefamationAbsolute PrivilegeTexas Civil Practice and Remedies CodeAppellate ReviewPro Se LitigantsJudicial ProceedingSettlement NegotiationsFraudulent LiensCourt Costs
References
16
Case No. MISSING
Regular Panel Decision

Messina v. City of New York

Plaintiff Thomas Messina, an electrician, sustained leg injuries after stepping into an unguarded drainpipe hole while working at Yankee Stadium. He and his spouse filed a lawsuit against the City of New York and the New York Yankees, alleging violations of Labor Law §§ 200 and 241 (6). Initially, the Supreme Court granted summary judgment to defendants on the Labor Law § 241 (6) claim but later reversed its decision upon reargument, deeming the nature of the drainpipe hole a factual question for the jury. However, the appellate court reversed this ruling, clarifying that the interpretation of an Industrial Code regulation is a matter of law. The court concluded that the drainpipe hole, approximately 12 inches in diameter and 7-10 inches deep, did not constitute a "hazardous opening" under 12 NYCRR 23-1.7 (b), thereby entitling the defendants to summary judgment dismissing the Labor Law § 241 (6) claim.

Construction site accidentDrainpipe holeHazardous openingSummary judgmentLabor Law § 241 (6)Industrial Code 12 NYCRR 23-1.7 (b) (1)Falling hazardsAppellate reviewStatutory interpretationQuestion of law vs. fact
References
10
Case No. MISSING
Regular Panel Decision
Mar 27, 1998

Rice v. City of Cortland

Plaintiff was injured in June 1994 at a waste treatment plant in Cortland County, New York, while working for Structural Associates, Inc., the general contractor. The injury occurred during drilling operations performed by subcontractor Reith’s Hole Drilling Service, Inc., when a metal cable from a drill rig contacted overhead power lines, electrocuting the plaintiff. Plaintiff sued the City of Cortland, the plant owner, and Reith, alleging violations of Labor Law §§ 200, 240 (1), 241 (6) and common-law negligence. The Supreme Court initially made several rulings on summary judgment motions. On appeal, the court affirmed the dismissal of plaintiff's Labor Law §§ 200 and 241 (6) claims against Reith, finding that Reith, as a subcontractor, lacked the authority to control the injury-producing activity. The court reversed the dismissal of plaintiff's Labor Law § 241 (6) claim against the City, establishing the City's nondelegable duty as owner to comply with specific safety regulations like 12 NYCRR 23-1.13. Additionally, Reith's motion for summary judgment dismissing plaintiff's common-law negligence claim was granted.

Labor LawNegligenceSummary JudgmentSubcontractor LiabilityOwner LiabilityWorkplace SafetyElectrocution InjuryConstruction AccidentNondelegable DutyIndustrial Code
References
14
Case No. MISSING
Regular Panel Decision

Mendez v. HRH Construction Co.

The plaintiff, Robert Mendez, an electrician, sustained injuries after falling 20 feet through an unguarded hole on the 14th floor of a construction site. He moved for partial summary judgment against HRH Construction Company, Inc. under Labor Law §§ 240 and 241. The court granted summary judgment for the plaintiff on the issue of liability under Labor Law § 240(1), finding that the 14th floor of a construction site is an elevated work site and that an unguarded hole presents the same hazard as a roof-top hole. However, the court denied summary judgment under Labor Law § 241(6) due to existing material issues of fact regarding reasonable protection and comparative negligence. All defendant cross-motions were denied.

Personal InjuryConstruction AccidentLabor Law § 240Labor Law § 241Summary JudgmentElevated Work SiteUnguarded OpeningAbsolute LiabilityProximate CauseComparative Negligence
References
9
Case No. MISSING
Regular Panel Decision

Kelley v. Alexander

Selma Kelley and her husband, John Kelley, appealed a summary judgment granted in favor of Mrs. Helen C. Alexander, d/b/a Beekman’s Roto-Rooter Sewer Service. Mrs. Kelley had fallen into a hole dug by Alexander's employees on her property. The trial court based its summary judgment on the doctrine of assumed risk, finding the danger of the hole open and obvious to Mrs. Kelley. The Kelleys argued that the 'rescue doctrine' should apply, as Mrs. Kelley was attempting to cover the hole to protect young neighborhood children who frequently played in her yard. The appellate court affirmed the summary judgment, concluding that the 'rescue doctrine' was not timely raised and, furthermore, was inapplicable because no one was in imminent peril at the time Mrs. Kelley fell. A dissenting opinion argued that Mrs. Kelley was acting under a legal duty as a landowner to protect the children, which should preclude the application of the voluntary assumption of risk doctrine.

Assumed RiskVolenti Non Fit InjuriaRescue DoctrineContributory NegligenceSummary Judgment AppealLandowner LiabilityPremises LiabilityOpen and Obvious DangerPersonal InjuryTexas Law
References
20
Case No. 2020 NY Slip Op 06733
Regular Panel Decision
Nov 17, 2020

Wenk v. Extell W. 57th St. LLC

The Appellate Division, First Department, affirmed an order granting plaintiff Christopher Wenk partial summary judgment on his Labor Law § 200 and common-law negligence claims against L. Martone & Sons Inc. The court determined that L. Martone was a "statutory agent" for Labor Law § 200 purposes, as it had been delegated authority to control the injury-producing activity. L. Martone was responsible for providing temporary protection against drain holes using limestone bags and ensuring their placement. The plaintiff established that L. Martone created the dangerous condition that resulted in his injuries, specifically by failing to warn workers of hidden holes when bags were removed.

Labor Law § 200Common-law negligencePartial Summary JudgmentStatutory AgentSupervisory ControlDangerous ConditionConstruction AccidentAppellate ReviewInjury LiabilityWorker Safety
References
5
Case No. MISSING
Regular Panel Decision
Jun 30, 2011

Fraser v. Pace Plumbing Corp.

The Supreme Court, New York County, affirmed an order denying summary judgment to defendant Pace Plumbing Corp. The case involves a plaintiff injured when a scaffold slipped into an uncovered hole on a construction site. The court found triable issues of fact regarding Pace's potential liability as a statutory agent under Labor Law §§ 240(1), 241(6), and 200, despite contractual specifications suggesting that others were responsible for covering openings. Additionally, questions remain about Pace's common-law negligence, including whether it created the hole, removed coverings, or accurately reported site conditions, thus precluding summary judgment.

Scaffold AccidentLabor LawSummary JudgmentNegligenceConstruction Site SafetyStatutory AgentContract DisputeTriable Issues of FactPremises LiabilityNew York Law
References
4
Case No. 2023 NY Slip Op 05589
Regular Panel Decision
Nov 08, 2023

Freyberg v. Adelphi Univ.

Plaintiff Douglas Freyberg sued Adelphi University for personal injuries, alleging violations of Labor Law §§ 200 and 241 (6) after tripping on plywood covering a hole. The Supreme Court granted the defendant's motion for summary judgment, dismissing the Labor Law § 200 claim and parts of the Labor Law § 241 (6) claim. The Appellate Division modified the order, reinstating the Labor Law § 200 claim by denying summary judgment to the defendant, finding a failure to demonstrate lack of constructive notice. However, the court affirmed the dismissal of the Labor Law § 241 (6) claim predicates, concluding the hole was too small and the plywood was an integral part of the construction, not a hazard in a passageway.

Personal injuryLabor Law 200Labor Law 241(6)Premises liabilitySummary judgmentConstructive noticeIndustrial CodeAppellate reviewSafe place to workCarpentry work
References
8
Case No. Appeal Nos. 483-485
Regular Panel Decision

McCoo v. Lollytogs, Ltd.

The plaintiff, an employee of JWP Forest, was injured while performing electrical work in a building owned by SZS 33 Associates and leased by KMA, with the lease guaranteed by Lollytogs. He claimed to have stepped from a ladder into an unmarked hole. The action sought damages for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court initially granted the plaintiff's summary judgment motion on Labor Law § 240 (1) liability. However, the appellate court reversed this decision, denying the plaintiff's motion for summary judgment due to a clear issue of credibility regarding the existence of the alleged hole. Additionally, the court modified an order granting SZS 33 Associates "full" indemnification against Lollytogs to "contractual" indemnification, affirming it with this change.

Labor LawScaffold ActSummary JudgmentIndemnificationContractual IndemnificationCredibility IssueWorkplace InjuryAppellate ReviewConstruction AccidentNew York Labor Law 240(1)
References
3
Case No. MISSING
Regular Panel Decision

Carpio v. Tishman Construction Corp.

Plaintiff, an employee of L&L Painting Co., Inc., was injured while painting a ceiling at a U.S. Post Office construction site. He fell three feet into an uncovered hole in the floor while looking upwards. Plaintiff sued Tishman and Crow, the construction manager and general contractor, alleging violations including Labor Law § 240 (1). The trial court denied his motion for partial summary judgment and granted summary judgment to the defendants, finding the risk not elevation-related. The appellate court reversed, holding that the plaintiff's injury, resulting from a fall into a three-foot differential hole, constituted an elevation-related risk covered by Labor Law § 240 (1), and reinstated the claim, granting plaintiff's motion for partial summary judgment.

Labor Law § 240 (1)Construction AccidentElevation-Related HazardSummary JudgmentAppellate ReversalUncovered HoleWorker SafetyNondelegable DutyGravity-Related RiskNew York Law
References
16
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