SECURITY GUARD WHO FELL DOWN ELEVATOR SHAFT NOT A "SPECIAL EMPLOYEE" UNDER WORKER'S COMPENSATION LAW; GETS NEW TRIAL

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Charles v. Broad Street Development, LLC

Date: Nov. 15, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

Comment: This case raises a somewhat obscure issue of New York Worker's Compensation law.

When a worker is hurt on the job, Worker's Compensation insurance pays medical benefits and lost wages, with the trade-off being that the worker can't sue his or her employer or a co-employee.

The "special employee" rule is a part of Worker's Compensation law that says that an accident victim can be employed by more than one company at the same time when hurt in an accident – a "general employer" that, essentially, gets the employee to the job, and a "special employer" who directs and supervises the employee's work. Basically, the "special employee" rule provides a way for defendants to weasel out of being sued for an accident or injury to the employee.

In today's case, a security guard accidentally fell down an building elevator shaft. The building owner argued that the security guard, although employed by another company, was its own "special employee." This lawsuit went all the way to trial and a jury found that the security guard was, in fact, a "special employee." And plaintiff's case was dismissed and over.

Fortunately, the jury is not always the final word in an accident case. Here, the appeals court throws out the jury's finding that the security guard was a "special employee," basically saying, "no way." And plaintiff gets to come back to court and have a new trial.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated March 5, 2010, which denied his motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants and against him on the issue of liability and for a new trial.

ORDERED that the order is reversed, on the law and the facts, with one bill of costs, the plaintiff's motion to set aside the verdict pursuant to CPLR 4404(a) is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial consistent herewith.

The plaintiff, who is employed by Guardian Services (hereinafter Guardian), was assigned as a security guard at a building owned and managed by the defendants Broad Street Development, LLC, and 61 Broadway Owner, LLC, respectively (hereinafter together the building defendants). The defendant Schindler Elevator Corp. was in charge of repairing and maintaining the elevators at the building. On September 8, 2005, the plaintiff's supervisor at Guardian asked the plaintiff to cover the lobby desk while he took a break. During the break, a cleaner told the plaintiff that he could not open the door to elevator number two. Without consulting the log books that indicated that elevator number two was out of service for repair, the plaintiff used an instrument to unlock the elevator hoistway doors and, having failed to notice that the elevator cab was not there, stepped into the shaft and fell 25 feet to the basement landing.

At trial, the Supreme Court charged the jury with respect to the special employee doctrine, and the jury found that the plaintiff qualified as the building defendants' special employee. The plaintiff then moved pursuant to CPLR 4404(a) to set aside the verdict, contending, among other things, that the Supreme Court should have found that he was not the building defendants' special employee as a matter of law. We agree.

Workers' Compensation Law §§ 11 and 29(6) provide that the receipt of workers' compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment" (Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 150, 908 N.Y.S.2d 117; see Reich v. Manhattan Boiler & Equip. Corp., 91 N.Y.2d 772, 779, 676 N.Y.S.2d 110, 698 N.E.2d 939). "A person may be deemed to have more than one employer for purposes of the Workers' Compensation Law, a general employer and a special employer" (Schramm v. Cold Spring Harbor Lab., 17 A.D.3d 661, 662, 793 N.Y.S.2d 530; see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355). "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another" (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 557, 578 N.Y.S.2d 106, 585 N.E.2d 355). While a person's categorization as a special employee is usually a question of fact, "the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact" (id.) Although no one factor is decisive in determining whether a special employment relationship exists, a key consideration is the employer's right to direct the work and the degree of control exercised over the employee (id. at 558, 578 N.Y.S.2d 106, 585 N.E.2d 355; see Slikas v. Cyclone Realty, LLC, 78 A.D.3d at 150, 908 N.Y.S.2d 117).

The evidence presented at trial established, as a matter of law, that the plaintiff was not a special employee of the building defendants. The plaintiff was hired by Guardian, received his paychecks from Guardian, and reported to his supervisor at Guardian rather than the director of operations for the subject building. The director of operations for the subject building testified that the building defendants had no right to tell the plaintiff what to do on a daily basis; instead, Guardian controlled the plaintiff's daily assignments. Furthermore, the director of operations had no control over the hours the plaintiff worked. While the director of operations could recommend that Guardian employees be fired, he could not fire them himself. Moreover, after the plaintiff's accident occurred, it was Guardian's off-site supervisor who prepared the accident report.

In light of this evidence, we find that no special employment relationship existed between the plaintiff and the building defendants, as a matter of law (see Slikas v. Cyclone Realty, LLC, 78 A.D.3d at 150, 908 N.Y.S.2d 117; cf. Thompson v. Grumman Aerospace Corp., 78 N.Y.2d at 557–558, 578 N.Y.S.2d 106, 585 N.E.2d 355). As a result, it was error for the Supreme Court to submit this question to the jury. Accordingly, the Supreme Court erred in denying the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict, and the matter is remitted to the Supreme Court, Kings County, for a new trial consistent herewith.

In light of our determination, we need not reach the plaintiff's remaining contentions.

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ELEVATOR OWNER GRANTED SUMMARY JUDGMENT AND CASE DISMISSAL FOR ACCIDENT (Posted by Queens accident attorney Gary E. Rosenberg on Dec 23, 2011)

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