On August 29, 2014, Judge Barbara Jaffe entered an order granting defendant Consolidated Edison’s (Con Edison) post-trial motion to set aside a verdict against it and direct that judgment be entered in its favor. Upon appeal, the Supreme Court of New York, Appellate Division, First Department, issued an a decision on January 10, 2017. The crux of this case revolves around the plaintiff’s exposure to asbestos while working for a subcontractor at Con Edison’s power plant.
The Appellate Division found the trial court improperly set aside the verdict in the plaintiff’s favor on the Labor Law § 200 claim against Con Edison. Here, the court held the evidence at trial demonstrated that Con Edison had the authority to control the activity bringing about the injury, and an implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. [Citation Omitted].
The court looked to another recently decided case in Matter of New York City Asbestos Litig. (North) (142 AD3d 408, 409 [1st Dept. 2016], where a jury verdict was upheld in the plaintiff’s favor on a Labor Law § 200 claim in an asbestos case where a predecessor of one of the defendants had issued detailed specifications directing contractors in the means and methods of mixing and applying asbestos-containing concrete and insulation at a power plant. In so holding, the court reasoned that it was of no consequence that the defendant had supervised the superintendents, rather than directly supervising the workers. The Appellate Division further compared that Con Edison had the ability to prevent the hazard ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing materials. Similarly, Con Edison’s specifications affirmatively required the use of hazardous asbestos-containing insulation materials, and Con Edison monitored work for compliance with those specifications. This is a far different situation from one in which a defendant has general workplace oversight and where there is no claim that the specifications themselves mandated that the contractor engage in the injury-producing activity.
In reaching this decision, this court held the order should be reversed to direct a new trial on damages unless the plaintiff stipulates to reduce the loss of consortium verdict to $360,000, the amount suggested by the trial court.