The issue before the Court of Appeals in McCarthy v. Turner Construction, Inc. (June 28, 2011) was whether the property owners were entitled to common law indemnification from the general contractor. The plaintiff in the underlying Labor Law action suffered injuries after he fell from a ladder. The plaintiff then commenced suit against both the property owners and general contractor. The Court of Appeals held that the owners were not entitled to common law indemnification from the general contractor. The underlying record established that the general contractor only had the authority to supervise the plaintiff's work and implement safety procedures. The general authority to supervise is not a sufficient basis for requiring common law indemnification. Liability for indemnification may only be imposed against parties who exercise actual supervision.

The plaintiff, as administratrix of the estate of the decedent, in Smart v. Zambito, 85 A.D.3d 1721 (4th Dept., 2011), commenced an action to recover damages for injuries allegedly sustained by the decedent when she fell on a set of exterior stairs at the defendant's residence. The defendant met his initial burden on his motion for summary judgment by establishing, as a matter of law, that decedent was unable to specify what caused her to fall "without engaging in speculation". The Court pointed out that the decedent's deposition established that it was just as likely that she fell due to dizziness or loss of balance than some actual defect. Based on that, the plaintiff failed to raise a question of fact in opposition to the defendant's motion.

The plaintiff in Miller v. Holiday Valley, Inc., 85 A.D.3d 1706 (4th Dept., 2011), commenced action to recover damages she allegedly sustained while skiing at the Holiday Valley resort. The accident occurred while the plaintiff was riding a chairlift with her 14 year old son. As the chairlift approached the unloading area, the plaintiff's skis got tangled with her son's snowboard. The defendants did not stop the lift until the plaintiff subsequently fell. Defendants moved for summary judgment based on the doctrine of primary assumption of risk. According to the defendants, the plaintiff assumed the risk associated with the sport of skiing. The Fourth Department disagreed and held that exiting a chairlift is not one of the usual dangers that are inherent in skiing. Defendants generally have a duty to exercise reasonable care to protect athletic participants from "unassumed, concealed or unreasonably increased risks". The Fourth Department held that exiting a ski lift was one of those protected risks.

The plaintiff in Gowans v. Otis Marshall Farms, Inc., 85 A.D.3d 1704 (4th Dept., 2011), suffered injuries when he fell through a hay hole in a barn owned by the defendant. At the time of his accident, the plaintiff's brother was taking measurements on the upper level of the barn. These measurements were "necessary and incidental" to the replacement of rotting carrier beams. In overturning the lower court's ruling, the Fourth Department held that "it is not necessary that an employee be actually working on his or her assigned duties at the time of the injury". Even though it was his brother who was taking the measurements, the plaintiff was still assisting with this task while on the roof and, therefore, entitled to protection under Labor Law §240.

The lower court granted the defendant's motion for summary judgment on the serious injury threshold in Burke v. Moran, 85 A.D.3d 1710 (4th Dept., 2011). The defendants were able to meet their initial burden on the motion by submitting an expert's affirmation establishing, as a matter of law, that there was no objective confirmation of the plaintiff's pain and that she did not qualify under the serious injury statute. The Fourth Department, however, overturned and held that the plaintiff did in fact raise a triable issue of fact with respect to the permanent consequential and significant limitation categories. The plaintiffs were able to raise a question of fact by submitting an expert affidavit and medical records demonstrating an objective basis for the reduced range of motion in the plaintiff's neck. The expert affidavit included "a numeric percentage of her loss of range of motion" in her neck.

The plaintiff in Biggs v. Hess, 85 A.D.3d 1675 (4th Dept., 2011), suffered injuries when the ladder on which he was standing slipped out from under him causing him to fall. At the time of the accident, the plaintiff was painting the interior of a garage owned by the defendant. Defendant made a motion for summary judgment on liability and met his initial burden by submitting evidence demonstrating that he was not the general contractor for the painting project nor did he supervise or control the plaintiff's work. Plaintiff was able to raise a question of fact by submitting an affidavit which established he overheard phone conversations between a co-worker and the defendant property owner which suggested that the owner provided instructions for completing the work. The Fourth Department made it a point to remind the parties that hearsay evidence, which the telephone conversation was, "may be considered in opposition to a motion for summary judgment provided that it is not the only proof relied upon by the opposing party". There was additional testimony within the plaintiff's affidavit which held that the defendant gave him instructions about a specific task just days before the accident.

Prepared by Kevin E. Loftus