One L(ove)

November 2, 2008

Ruining Lives

Filed under: Uncategorized — galileehitchhiker @ 12:35 am
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I handed in the memorandum of law I wrote for my Legal Writing class and am now feeling such tremendous relief. I went two pages over the 15-page limit but that’s expected since I’ve always believed quantity is greater than quality. This is the second-to-last assignment for the class but the last one is just adding small details to this one. Basically, the assignment divided the class in half by the students’ last names and called upon them to write a memorandum of law. One half had to write a motion for summary judgment for the defendants and the other half had to write a motion countering that motion since they represent the plaintiff. I, of course, represented the defendants. So what is the fact pattern of this case?

A worker, who happens to be the plaintiff in this case, was working on removing a billboard ad 30 feet above a roof of a building which is owned by one of the defendants. The worker’s job was to upgrade the steel frame and also remove an old ad from a billboard and replace it with a new one. In the process of removing the ad, the catwalk on which the worker happened to be gave way because it was rusted (this catwalk is owned by the other defendant, who also happens to own the billboard). While he fell through the hole in the catwalk, he suffered a great laceration on his right arm. Fortunately, a safety harness was provided to him by his employer and it prevented him from falling all the way down to the roof, meeting an untimely demise. But (of course it didn’t have to end there), there was a slack in the safety line and this caused the worker to fall ten feet more. Then the line stopped the worker from falling more with a sudden jerk, causing him to sustain three herniated discs to his lumbar spine. He brought action against the defendants under New York’s Labor Law sec. 240(1), also better known as the Scaffold Law.

The Scaffold Law gives workers an awesome amount of protection by making sure that owners and subcontractors provide a safe working area for them by preventing them from sustaining injuries that are elevation-related risks. It provides:

1. All contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure shall furnish or erect,
or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so
No liability pursuant to this subdivision for the failure to provide
protection to a person so employed shall be imposed on professional
engineers as provided for in article one hundred forty-five of the
education law, architects as provided for in article one hundred
forty-seven of such law or landscape architects as provided for in
article one hundred forty-eight of such law who do not direct or control
the work for activities other than planning and design. This exception
shall not diminish or extinguish any liability of professional engineers
or architects or landscape architects arising under the common law or
any other provision of law.

Now, I had to write a summary judgment which states essentially that the worker has absolutely no claim under the Scaffold Law. To write a summary judgment, the moving party must show that there are no material or triable facts and therefore, “as a matter of law” (when these five words are uttered, it lets you know that something tremendously important is happening that could either ruin your case or get a “pistol and wink” from the partners at your firm), the movant is awarded judgment in its favor after it has establised a prima facie case and the party that opposes the motion fails to produce evidence that there are indeed material or triable facts.

I divided my motion into two arguments: 1. The activity performed by the worker does not fall under one of the activities enumerated in the Scaffold Law; and 2. the injuries sustained by the worker was not due to a violation of the statute by the owners.

I argued the first argument extensively (13 pages!) since the fact pattern favors the defense here incredibly. According to cases such as Munoz v. DJZ Realty and Hatfield v. Bridgedale, removing a billboard ad is just “cosmetic maintenance or decorative modification” and therefore is not one of the activities enumerated in the Scaffold Law. The worker argued that his work was “alteration” which the Joblon v. Solow case defined as making “significant” physical changes to a structure. But I argued that it doesn’t since changing an outward appearance of a billboard is not making a significant physical change upon its structure.

The second argument was tough to prove for the defense so that’s why I dedicated 3 pages to it, haha. The Scaffold Law imposes strict liability upon owners and subcontractors whose violation of the statute is the proximate cause of a worker’s injuries. Also, New York’s Industrial Code provides that the safety line should be arranged such that a worker would not fall over five feet! Totally screwed here. With cases like Kyle v. City of New York (which held that even if safety harnesses safe a worker’s life and was inadequate, the owners are still liable and also that the owners did not ensure that the harnesses were attached to separate safety lines) in the plaintiff’s arsenal, I argued (apparently the one I love to make when I am cornered) that there is no evidence in the record to show that the owners didn’t ensure that the safety line was properly arranged and that the plaintiff cannot provide evidence based on mere wishes and speculation. What a weak argument!

The assignment was designed so the plaintiff’s side could wreck their brains over the “alteration” issue and, similarly, the defendants on the injuries issue.

After handing in the assignment and putting it in my professor’s inbox, I was utterly relieved. I found the assignment to be stressful, yet incredibly fun since I’m interested in labor and employment law. But (here we go again), I couldn’t help to imagine how it would be if all of this was real, if a worker really fell and sustained horrible injuries, if I was actually writing a summary judgment on behalf of the defendants who didn’t bother to check if the goddamn catwalk and safety line were in good condition. I imagined myself before the judge, arguing that the summary judgment should be granted in my clients’ favor. And when the judge says that it has been granted, and we all smile and pat each other on the back, I look to the other side of the aisle and see a guy totally paralyzed and worrying sick how he’s going to provide for his family. That kind of stuff breaks your heart because you know the douche bags you represent didn’t care to check if the safety devices were in proper condition. My Civil Procedure professor is a labor and employment lawyer and he represents defendants. He says the same thing, that he knows that some of his clients just didn’t care. I guess as a lawyer, you might feel such tremendous emotions because you know that in the back of your mind that the American legal system is based on the adverserial system. It’s a beautiful system (those of you don’t trust authority might appreciate this) since incredible power is put not into the hands of a judge, but the two opposing parties (for example, the judge does not bring his or her own expert but the parties do). The two parties basically duke it out with all that they’ve got and whoever presents a more convincing case, wins. This is how our legal system is founded. It’s basically your interpretation (story) of the facts or the opposing counsel’s version that is up for sale in the courtroom. Being a lawyer and knowing that makes you feel emotions in their highest intensities since you know that you play a great part in bringing about a loss to someone. This can’t help but to think of Robert Cover‘s starting sentences in his seminal paper “Violence and the Word”:

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occured or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

Jesus! I wrote a lot!

Currently listening to: Sonny Rollins – Way Out West


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