New York Injury Lawyers Blog

A Third Department Appellate Court recently ruled that an employee who fell from a ladder did, in fact, come under the protection of Labor Law 240, commonly known as the Scaffold Act. The plaintiff was installing a cable line at a subscriber's house at the time. He had finished the installation, and proceeded to check on a filter on cable wires outside the house. As the plaintiff was descending the ladder, it began to slide sideways along the hard wires that it was attached to. The plaintiff jumped off the ladder and was injured when he landed on the ground.

Under Labor Law 240, workers are protected while, among other things, making alterations to a building or structure. The Supreme Court originally entered summary judgment for the defendant, finding that the plaintiff's work at the time of the accident did not fall under the meaning of the word "alteration" as defined by the statute. Courts generally construe the Scaffold Act very liberally in order to afford ample protection to workers injured while working at an elevated height. This makes the original finding by the Supreme Court somewhat surprising, and the reversal by the Appellate Division less so. The Appellate Court found that replacing the filter was part of the work of alteration of the house, as the work ordered was not complete until the filter had been checked and replaced. The court states: "[A]s it is undisputed that the cause of the accident was the ladder's failure to provide the required protection, he (plaintiff) is entitled to partial summary judgment as to liability under Labor Law (section) 240."

As this blog has previously discussed, the Scaffold Act is a strict liability statute. Negligence on the part of the injured party does not mitigate the employer's responsibility to protect worker's from harm when working at an elevation. It is incumbent upon the employer to ensure that all necessary safety precautions are met to avoid accidents in these situations, because in almost all cases the court will find for the plaintiff if an injury does occur.

The City of New York improperly released the body of a 51 year-old male to a funeral home in Pennsylvania, where he was ultimately buried. The plaintiff-decedent's mother had been informed that her son had died, and two of the plaintiff-decedent's siblings had already identified the body at the medical examiner's office before the body was released to the PA funeral home. The body was exhumed several days later and returned to New York. However, due to decomposition it had to be cremated.

As discussed previously on the New York Personal Injury Lawyers Blog, a "loss of sepulcher" occurs when the next of kin of the deceased is deprived of the right to choose and control the burial, cremation, or other final disposition of a dead body. Under New York Law, the next of kin of a decedent can commence a lawsuit for a violation of his or her right of sepulcher when 1) a next of kin's right to immediate possession of a decedent's body is interfered with, and 2) the interference causes mental anguish. New York courts have held that interference with a next of kin's right of sepulcher can arise under the following circumstances: 1) unauthorized autopsy; 2) inadvertent disposition of remains; and 3) failure to notify next of kin of the death.

In Jones v. City of New York, the jury awarded plaintiff $800,000 for past emotional pain and suffering arising from a loss of sepulcher. On appeal, however, the Court held that the award deviates materially from what is reasonable compensation. The Third Department ruled that it would vacate the award and order a new trial on damages unless plaintiff stipulated to accept a reduced award of $400,000.

Jones v. City of New York, 80 AD3d 416 (3d Dept. 2011).