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

Case No. 09-22-00222-CV
Regular Panel Decision
Dec 12, 2024

Colleen Paige Simmons v. Top Deck, Inc.

Colleen Simmons sued her former employer, Top Deck, Inc., for employment discrimination, alleging sexual harassment (quid pro quo and hostile work environment) and retaliation by a Top Deck employee, Justin Bufford. Simmons claimed Bufford requested sexually explicit photos and engaged in sexual banter, leading to a lack of work assignments. Top Deck moved for summary judgment, which the trial court granted. On appeal, the Court of Appeals affirmed the summary judgment, finding no genuine issues of material fact. The court concluded there was no evidence of quid pro quo harassment because the sexual text messages occurred after Simmons had already decided to cease employment. Furthermore, Top Deck successfully invoked the Faragher/Ellerth affirmative defense for the hostile work environment claim, as Simmons failed to report the alleged harassment through established company procedures. Finally, Simmons's retaliation claim failed because her actions did not constitute 'protected opposition' under the Texas Commission on Human Rights Act.

Employment DiscriminationSexual HarassmentQuid Pro QuoHostile Work EnvironmentRetaliationSummary JudgmentFaragher-Ellerth DefenseTexas Labor CodeText MessagesWorkplace Policy
References
26
Case No. MISSING
Regular Panel Decision
Jul 30, 2009

LaMoy v. MH Contractors, LLC

John F. LaMoy, an employee, suffered injuries when a deck handrail constructed by the unidentified defendant deck builder gave way. LaMoy and his wife sued the defendant for negligent construction. The Supreme Court dismissed the complaint, ruling that the defendant did not owe a duty of care to LaMoy. On appeal, the court affirmed this dismissal, concluding that the plaintiffs failed to demonstrate that the defendant's construction created or increased a dangerous condition, which would have established a duty to a third party. The court reiterated that a contractual obligation alone generally does not create tort liability to a third party.

NegligenceDuty of CareThird-Party LiabilityContractual ObligationBuilding Code ViolationDeck ConstructionHandrail FailurePersonal InjuryDismissal of ComplaintAppellate Review
References
10
Case No. 2024 NY Slip Op 03041 [228 AD3d 649]
Regular Panel Decision
Jun 05, 2024

McConnell v. County of Nassau

The plaintiff, Joseph McConnell, sued the County of Nassau for personal injuries after slipping and falling on a pool deck's painted depth marker. The plaintiff alleged the County negligently applied the depth markers without proper sand mixture, making them slippery. After a jury verdict in favor of the plaintiff for $170,000, the defendant County of Nassau appealed. The Appellate Division, Second Department, reversed the judgment, granting the County's motion to dismiss the complaint. The court found no rational basis for the jury's verdict, ruling that the County had not received prior written notice of the alleged dangerous condition, and the 'affirmative negligence' exception did not apply because the defect developed over time due to environmental wear and tear, rather than immediately from the application.

Personal injurySlip and fallPool deckDepth markerNegligenceMunicipal liabilityPrior written noticeAffirmative negligenceCPLR 4401CPLR 4404(a)
References
13
Case No. MISSING
Regular Panel Decision

Rawlins v. United States

Longshoreman Timothy Rawlins sustained a severe left knee injury after slipping on an oily and wet deck aboard the CAPE VINCENT, a vessel owned by the United States government. Rawlins sued the United States for negligence, asserting that the vessel owner failed to maintain a safe working environment. The court found the United States and its crew 80% negligent for not addressing the known hazardous conditions, as they retained active control over the loading operations. Rawlins was assigned 20% comparative negligence for stepping into the known slippery area while avoiding a moving vehicle. Ultimately, the court awarded Rawlins $428,089.83 in damages from the United States, after accounting for comparative negligence and reimbursing his employer's compensation lien.

Maritime LawAdmiralty LawLongshoreman InjuryVessel Owner NegligenceComparative NegligenceUnsafe Working ConditionsSlippery DeckPublic Vessels ActSuits in Admiralty ActLHWCA
References
9
Case No. 03-07-00034-CV
Regular Panel Decision
Aug 31, 2009

Towers of Town Lake Condominium Association, Inc. v. Venus Rouhani

Venus Rouhani, a practicing dentist, sued Towers of Town Lake Condominium Association, Inc. for negligence after she slipped and fell near the indoor swimming pool, sustaining severe injuries including a comminuted fracture and avascular necrosis of her right humerus, which led to the sale of her dental practice. A jury found the Association negligent for maintaining an unreasonably slippery pool deck, painted with enamel without anti-slip additives, and awarded Rouhani substantial damages for her injuries and lost future earning capacity. The Association appealed the judgment, challenging the legal sufficiency of the evidence regarding knowledge of the dangerous condition, proximate cause, and the amount of damages for lost earning capacity, as well as the trial court's refusal to submit an unavoidable accident jury instruction. The Court of Appeals affirmed the trial court's judgment, finding sufficient evidence to support the jury's findings on all challenged points and that the trial court did not abuse its discretion in refusing the instruction.

Premises LiabilityNegligenceSlip and FallPersonal InjuryDamagesFuture Earning CapacityExpert TestimonyAppellate ReviewJury InstructionsUnavoidable Accident
References
27
Case No. MISSING
Regular Panel Decision
May 24, 2005

Beharry v. Public Storage, Inc.

The plaintiff, Deonarine Beharry, an iron worker, sustained injuries after falling through metal decking while ascending unfinished stairs at a construction site. He sued the property owners, Public Storage, Inc. and PSAC Development Partners, LP, and the general contractor, Racanelli Construction Company, Inc., alleging a violation of Labor Law § 240 (1). The Supreme Court, Queens County, granted the plaintiff's motion for judgment as a matter of law on liability. The defendants appealed, arguing the metal decking was not a safety device and the plaintiff's conduct was the sole proximate cause of his injuries. The Appellate Division affirmed the lower court's decision, determining that the metal decking served as a functional equivalent of a ladder under Labor Law § 240 (1) and the plaintiff's conduct was not the sole proximate cause.

Personal InjuryConstruction AccidentLabor LawScaffold LawLiabilityMetal DeckingSafety DeviceProximate CauseAppellate ReviewJudgment as a Matter of Law
References
10
Case No. MISSING
Regular Panel Decision

Marbar, Inc. v. Katz

This summary holdover proceeding addresses whether a long-term rent-stabilized tenant can be evicted for unauthorized alterations. The tenant replaced an old outdoor wooden deck with a new, larger one and installed a new brick patio without landlord's permission. Claims regarding debris, covered boiler vents, and graffiti were dismissed. The court found the deck and patio to be material unauthorized alterations. However, recognizing the policy against forfeiture of long-term tenancies, the court granted the landlord a final judgment of possession but stayed the warrant of eviction for 10 days, allowing the tenant to cure the breach. The cure involves removing the cement patio and, if the old deck is gone, posting a $5,000 bond to cover restoration costs upon future vacatur.

Holdover proceedingRent stabilizationUnauthorized alterationsLease violationEquitable reliefForfeiture of tenancyConditional judgmentCure periodLandlord-tenant disputeProperty rights
References
22
Case No. MISSING
Regular Panel Decision
May 03, 1995

Duffy v. Universal Maintenance Corp.

The Supreme Court, Bronx County, affirmed the summary judgment dismissing the complaint against the defendant maintenance company. The plaintiff's complaint was dismissed due to a lack of evidence regarding the reason for the fall, beyond the 'inherently slippery' nature of the terrazzo floor. The court found no proof of negligent wax application or actions by the defendant that made the floor dangerous. The court properly disregarded the plaintiff's expert opinion, which was based on observations made four years after the accident, as conclusory. Unsworn statements from co-workers regarding the floor's consistent slipperiness and maintenance activities were also disregarded as inadmissible hearsay.

Summary JudgmentSlip and FallTerrazzo FloorNegligenceMaintenance CompanyExpert TestimonyHearsay EvidencePremises LiabilityDismissalAppellate Affirmation
References
5
Case No. MISSING
Regular Panel Decision

Kudrov v. Laro Services Systems, Inc.

Justice Saxe dissents from the majority's decision, arguing that the denial of the defendant's motion for summary judgment should be affirmed. The dissent acknowledges the general rule that a slippery floor alone does not infer negligence without proof of negligent wax application. However, the plaintiff, Kudrov, not only described the floor in the Port Authority Bus Terminal as 'shiny, slippery' but also stated that her clothes felt like they had wax on them after her fall. The dissent contends that this specific assertion by the plaintiff permits the inference that an excessive amount of wax was applied, thereby creating a triable issue regarding the defendant's potential negligence in applying wax or buffing the floor. On this basis, the dissent would affirm the denial of summary judgment.

summary judgmentnegligenceslip and fallpremises liabilitywaxed floorevidence of waxtriable issuedissenting opinionManhattanPort Authority Bus Terminal
References
2
Case No. MISSING
Regular Panel Decision

Marc A. Nicometi v. The Vineyards of Fredonia, LLC / Scott Pfohl v. Western New York Plumbing-Ellicott Plumbing and Remodeling Co.

A dissenting opinion by Chief Judge Lippman argues against dismissing a plaintiff's Labor Law § 240 (1) claim. The dissent contends that stilts placed on ice present an 'elevation-related risk' analogous to ladders on slippery surfaces, thus falling under the protection of Labor Law § 240 (1). It critiques the majority's interpretation of *Melber v 6333 Main St.*, asserting that the statute should be construed liberally to protect workers. The opinion distinguishes this case from other 'trip and fall' cases by emphasizing that the combination of stilts/ladders and ice exacerbates elevation risks, referencing *Klein v City of New York* and *Bland v Manocherian* where equipment placement on slippery floors led to liability under the Labor Law.

Labor LawConstruction safetyFall protectionElevation hazardsScaffoldingStatutory constructionJudicial dissentPrecedent analysisWorkplace injuryEmployer liability
References
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