McLeod v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, et al.

July 11, 2007

Plaintiff, Bert McLeod, and his wife, Victoria McLeod, commenced an action for injuries sustained when plaintiff was allegedly struck by a section of a crane (the jib) and a piece of wood used to support the crane’s jib while the crane jib was being lowered and dismantled. Plaintiff alleged numerous serious personal injuries as a result of the accident, including a fractured femur with hardware placement, allegedly resulting in his total incapacity from future employment.  The accident is alleged to have occurred at the construction site located at the premises of the defendant Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints ("the Church"). At the time of the accident, defendant East Coast Construction Group, Inc. ("East Coast") was the construction manager. Plaintiff was the employee of a non-party subcontractor of East Coast.

Plaintiff alleged violations of New York labor Law Sections 240(1), 241(6) and 200, as well as claims for common law negligence against the Church and East Coast.  At the trial level, the Church and East Coast succesfully had the Section 240(1) and 241(6) claims dismissed on summary judgment on the grounds that the piece of wood that struck plaintiff was moving horizontally and thus did not constitute a "falling object" under Labor Law Section 240(1).  The Section 241(6) claims were also dismissed by the trial court despite plaintiff's submission of an expert affidavit opining that the method employed to dismantle the crane violated certain provisions of the Industrial Code, on the grounds that the expert affidavit submitted by plaintiff was speculative and conclusory.  however, the trial court refused to dismiss the Section 200 and negligence claims finding issues of fact.

On appeal, the Appellate Division, Second Department reversed the trial court and dismissed the Labor Law Section 200 and common law negligence claims finding that plaintiff had failed to submit any evidence that the Church or East Coast directed and controlled plaintiff's work, or had notice of any alleged defective condition which caused the accident, a prerequisite for liability under Labor Law Section 200 and common law negligence principles.  The decision on appeal resulted in the complete dismissal of all claims asserted by the plaintiff.  Partner Mario Castellitto and Associate Jerri DeCamp represented the Church and East Coast from the inception of the case through appeal.  

Entire Decision & Order