New York: Settlement in Burn Case, Kings County Court
February 27, 2014

Ernest Williams and Lynette Williams v. Potamkin Cadillac, et. al. Kings County Index No. 8350/10

Rawle & Henderson’s client, a legendary auto dealer in New York City for years, was planning to sell their iconic dealership located in midtown Manhattan. To do so though, it was first necessary to remove several old gasoline tanks that had been buried below the dealership for decades. This would require digging them up, then purging them of any gasoline residue before they could be decommissioned and scrapped.

They engaged the services of a well-known company that specialized in such removals. One of the crew that was sent, Mr. Williams, was a 17-year veteran of the company and the apparent foreman of the crew. He was also the union shop steward. The procedure to be followed was simple: locate and expose the tanks, call in the “pump truck” to purge the contents, then cut them up and ship them out. Two of the tanks had already been disposed of when another two were exposed (they were in pairs).

Mr. Williams called his office to request the pump truck, but was told that none would be available until the next morning. It was not yet 11:00 am, so there was still a day to fill. Without further instruction over the telephone (Williams was speaking to his superior), Williams decided to start cutting the piping that led from the tanks. But rather than use a “Sawzall,” a saw that cuts metal, he decided to use a welding torch to remove the pipes, despite the obvious risk given the sparks this would create and the potential for igniting any gas residue in the tanks.

Yet, that is exactly what happened. After less than a minute, a fireball erupted, severely burning Mr. Williams. After multiple operations and skin grafts, he was left with a hand where the thumb and fingers had been burned off halfway, making it useless as a hand, as well as multiple scars over his torso and legs. He never returned to work.

His attorney sued our client, the owner of the property, asserting a provision of the New York State Labor Law. That provision, Section 241(6), makes the owner of a property liable where a worker is injured in certain types of construction or demolition if plaintiff can prove there has been a violation of the New York State Industrial Code, and that said violation was a significant factor in causing plaintiff’s injury. The fact that the property owner did not himself violate the code or that the owner did not in any way supervise or direct the worker is irrelevant. Indeed, the owner does not even need to be on site at the time of the accident. The law does allow the owner, if he is able to prove that he was not actively negligent (didn’t direct the work or the plaintiff) to implead the actively negligent party and pass the liability through to that party.

Here, the actively negligent party was plaintiff’s employer, but because plaintiff had received worker’s compensation benefits, he could not sue his employer. In this case, the law only allows an impleader and “pass through” of the owner’s statutory negligence to the employer if either: the owner has a contract with the employer, which has an expressed indemnification provision in favor of the owner, or the plaintiff has suffered a “grave injury,” which basically means complete loss of a body part.  In this case, although both our client and the employer were both long established firms in New York City, they had failed to enter into a contract with an indemnity provision leaving our client totally exposed to what could be a very high verdict in a jurisdiction considered very favorable to plaintiffs. The entire verdict could go in against our client. It was essential to gather sufficient evidence that showed that plaintiff’s actions were overwhelmingly the reason for the accident, and that the cause of his injuries was the negligence of the plaintiff and his employer.

Derek E. Barrett, Of Counsel in Rawle & Henderson’s New York office, retained the services of a cause and origin fire expert, who opined that–after viewing the surveillance video–it was clear that plaintiff caused his own accident by cutting a pipe that was still connected to a tank, which he had denied. He also obtained depositions of the witnesses to the occurrence as well as responding fire personnel whose testimony backed up the expert’s observations.  When plaintiff moved for summary judgment on Labor Law, we challenged his motion on every front, citing our fire expert’s opinion and pointing out that many of the provisions of the Industrial Code cited by plaintiff did not apply to the case.

The judge ruled on the summary judgment motion, granting only the one provision relating to not purging the tank (plaintiff’s fault), but refusing to find that it was caused by anything our client did, ruling that to be a question of fact.

It was then that plaintiff asked if we would mediate. After an entire day, the insurance carrier for the employer decided that they would pay the bulk of a settlement. Our client agreed to pay 10% since there was still a risk that a grave injury might not be found, which would let the employer out of the case.  Thus, our client paid $300,000 on a settlement totalling $3,250,000. The jury exposure for such an injury was in excess of $7,000,000. The arbitrary and unfair nature of the New York Labor Law continues, and had the plaintiff not suffered such a major injury, the lack of a contract with the employer would have prevented the claim against the employer.
Derek E. Barrett, Counsel to the Firm in Rawle & Henderson’s New York office, is an active trial lawyer whose practice is concentrated in the areas of commercial motor vehicle litigation, construction and premises liability as well as medical and dental malpractice. Mr. Barrett obtained his law degree from New York Law School in 1991. He graduated with a B.S. degree from Queens College of the City University of New York. He is admitted to practice in New York and New Jersey, and before the U.S. District Court for the District of New Jersey and the United States District Courts for the Northern and Southern Districts of New York.

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