In Cordeiro v. TS Midtown Holdings, LLC, et al., The New York Appellate Division, First Department on September 15, 2011, granted plaintiffs’ motion for partial summary judgment as to liability on their Labor Law § 240(1) claim.
The plaintiff sustained injury while preparing to remove elevator equipment from a building owned and managed by defendants by hoisting it through hatchway doors connecting a motor room with the floor below it. As plaintiff was sliding open the latch to the doors, they unexpectedly opened, causing him to fall to the floor below. Despite the fact that the doors were a permanent fixture of the building The Court in granting the motion and reversing the lower Court held;
“Plaintiffs met their prima facie burden of establishing entitlement to partial summary judgment on their Labor Law § 240(1) claim. Although the doors through which plaintiff fell were a permanent fixture of the building, they were not a “normal appurtenance,” but rather, an access opening specifically built for the purpose of allowing workers to perform their work on the building elevators by hoisting materials to the building’s motor rooms (Brennan v RCP Assoc., 257 AD2d 389, 391 [1999], lv dismissed 93 NY2d 889 [1999]). Accordingly, we find that the hatch in this case was a “device” within the meaning of § 240(1) (see id.; Crimi v Neves Assoc., 306 AD2d 152, 153 [2003]). Further, plaintiff did not step onto hatchway doors that opened accidentally (compare Bonura v KWK Assoc., 2 AD3d 207 [2003], and Rodgers v 72nd St. Assoc., 269 AD2d 258 [2000]). Rather, plaintiff was required to open the doors in order to hoist up the governor from the 19th floor hallway below. This exposed plaintiff to a gravity-related risk of falling into the hallway from the motor room (see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007]).”
Our Partner Ben Rubinowitz will be lecturing at the DECISIONS 2011 Program at the Prince George Ballroom, 15 East 27th St. New York City on Saturday, September 10, 2011. This is the Flagship Program Sponsored by the New York State Trial Lawyers Institute. This annual event is designed to provide insight, information and current trends in the law to Practicing Attorneys throughout the State. Recognized as an expert in the Fields of Personal Injury, Products Liability and Medical Malpractice Cases, Mr. Rubinowitz will be lecturing on Trial Practice with specific emphasis on new cases and trends in the law including important topics such as:
SOCIAL NETWORKING
What are the affirmative and defensive uses of Social Networks?
At our firm we have always believed that the “plaintiff’s attorney” fills many roles. Not only as an attorney but as an advisor and friend. Obviously the first priority is to advocate with all one’s skills the client’s cause. The client is most often an individual who under normal circumstances could never afford the high quality of legal representation provided by the skilled personal injury attorney. The client is also usually experiencing the most traumatic event of their life. It has always been our philosophy that our attorneys must be both friend and advisor, for we are constantly called on to comfort the client as well as the client’s family. The attorney must see to it that the client receives all available insurance benefits and the best medical and rehabilitation services available.
Our partner, Howard Hershenhorn recently settled, at mediation, an extremely difficult personal injury case with regard to the liability of the defendant. The plaintiff was severely injured. Despite the many obstacles, we decided we would handle the case. Howard worked diligently on the case for years and was constantly there for his client. As a result of his efforts, a case we believed would proceed to trial with a good chance of an adverse verdict, was settled. Following the settlement, the client sent the following note to Howard:
“Hi Howard. I don’t know how to thank you for your commitment and determination. How fortunate for us to have found you…and that you believed in this case and agreed to take it. There’s no doubt on my mind that you did the best for us and the proof is on the outcome of last week’s meeting. You are a fantastic lawyer, as well as kind and compassionate. This is such a difficult journey. I appreciate how you and your team worked so diligently and at the same time protected us from enduring additional pain. Thank you on behalf of the boys too!”
$2.1 Million Settlement Reached in Kentucky Military Malpractice Claim, Insurance Journal
Texas Town Agrees to Settle in Wrongful Death Suit, Colony Leader
Errant Vehicle Kills 3 Women Outside Albany, New York Times
New York State police confirmed that a 46-year-old Vermont construction worker died of injuries caused sustained in a heavy machinery construction accident.
Michael Loyer of South Burlington was working for Trenchless Technologies of New England at a railroad site in Port Kent, New York. The accident occurred while he was installing a 3-foot-diameter pipe using an auger. The auger became bound in the pipe causing him to be thrown to the ground and pinned under the auger.
One of Loyer’s co-workers used a backhoe to lift the auger and free his body. An ambulance arrived to take Loyer to the hospital, where he was pronounced dead. The construction accident remains under investigation.
Partners Ben Rubinowitz, Chris Sallay and Anthony Gair working together settled this personal injury case at mediation with the case on the Trial Calendar for $5,000,000.00.
The plaintiff, 47 at the time of the accident, had climbed a fire escape to the third floor of a building when the landing upon which he was standing collapsed causing him to fall approximately 30 feet to the ground. As a result he suffered an intra-articular radial fracture of the right wrist and comminuted fracture of the left wrist. He required surgery of both wrists. He also suffered facial fractures requiring surgery. He further required an exploratory laparotomy a for abdominal injuries. It was also claimed that he suffered a traumatic brain injury. The defendant alleged the plaintiff was negligent for using the fire escape to gain access to a third floor apartment and that plaintiff recovered from his injuries to the extent he was able to return to work.
The New York Personal Injury Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing people who have suffered injury in all types of accidents in New York.
Fatal car accident in Fort Greene after a driver that police say was drunk hit a women’s car early Sunday.
By; Anthony Gair,
In personal injury cases predicated upon the negligent design of a product,(product liability cases), such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff’s attorney to understand the basics of machine design. This is crucial in New York where the plaintiff’s culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible. It is not enough for an attorney to simply ask a product design engineer at deposition how the product works. Such questions alone are pointless and will not result in a deposition which can be used to defeat a motion for summary judgment, or at trial, to impeach the product design engineer. As in any deposition the lawyer must ask himself what the purpose of the deposition is. Is it merely to gather information or is it to cross examine the witness so he will be pinned down at trial? In a product liability case in New York the plaintiff is allowed to serve extensive interrogatories. Hence if well drafted the plaintiff’s attorney will have most of the discovery needed for both deposition and trial. Hence it is submitted that the primary purpose of the deposition of a product design engineer is to cross examine him on the principles of design engineering. Similar to a deposition of a physician in a medical malpractice case where the plaintiff’s lawyer must know the medicine as well, if not better, then the physician the plaintiff’s lawyer must know the principles of design engineering as well as the design engineer. If one is not willing to learn this area there is no reason to undertake a complex product design defect case. The plaintiff’s lawyer must check the college and graduate school curriculum for the field of design engineering and read as many of the texts used in design engineering courses as possible.. If a lawyer is not willing to make this commitment he is better off referring the case to a specialist in product design defect cases. The following is a basic discussion of the principles of machine design.
Machine design is a sub-specialty of mechanical engineering. In designing machines, design engineers must take into consideration that a machine, will be used by people of varying intelligence, education and skill. “Human factors engineering, engineering psychology, and ergonomics are largely overlapping segments of a common area of interest: the analysis and design of the conditions affecting people operating in concert with machines”. 1
Ergonomics, or Human Factors Engineering and Design as it is commonly referred to in the United States, involves the consideration by the design engineer of human factors and characteristics when designing safety features into machines. The cardinal principal is that it is human nature to err, that is, people make mistakes. It is standard and accepted practice that the concept of human error be taken into consideration when designing a machine. A machine, must be designed to reduce, as much as is technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator causing injury or death.
In designing a machine a hazard analysis must be done. From a design engineering standpoint a hazard is a condition that has the potential of causing or contributing to injury.
Danger in the context of safety design engineering theory means a higher probability of the risk of an identified hazard causing injury. Risk is the probability of being injured by an identified hazard.
When a design engineer has identified a foreseeable dangerous hazard, there is a safety design priority recognized by all design engineers with reference to preventing injury from the identified hazard which is a follows:
A. Design out the hazard if one can do so without destroying the ability of the machine to function or utility of the machine.
B. If an identified hazard cannot be designed out of the machine without destroying its ability to function or utility the next goal of the design engineer is to guard against it causing injury by incorporating guards or other safety devices.
C. The last alternative is that if one can’t design out the hazard because doing so would destroy the utility of the machine and one can’t guard against it by incorporating guards or safety devices, the last priority is to warn about it. It is the ethical responsibility of the design engineer for the machine to develop a safe functional design which eliminates or greatly reduces the potential for human error on the part of the machine operator causing injury to him self or others.
The following are sample questions that should be asked in a design defect case at the deposition of the design engineer who designed the product;
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