Section for an Appellate Brief - Assignment Example

On behalf of the Defendants - Appellanats Goober Properties and Sheldon Contractors Plaintiff was a special employee in the defendant’s company The accident was due to lack of perceived care and prudence by the plaintiff There were no material witnesses to the accident and to the modus operandi of its occurrence By using the unprotected ladder, the plaintiff had granted tacit approval to the accompany risks to life and limb resulting from its use The fact that Mrs. Christine Sheldon and Mr. Sheldon are joint venture partners does not bear any material attachment to this case. The Hon’ Court also needs to consider that the nature of work which led to the accident fell outside the purview of Section 240(1) of the Labour Law Act. Hence it is respectfully submitted, that the cause of action not being established, the Plaintiff’s appeal may please be overruled by the Hon’ Court. Questions presented Section for an Appellate Brief on behalf of Defendants - Appellanats Goober Properties And Sheldon Contractors Question Presented # 1: Did the Court err in not granting summary judgment to plaintiff regarding enumerated acts, including the erection, demolition, repairing ,altering painting, cleaning or painting of a building or structure, under Labor law Section 240(1) when the trial court found issues of fact as to plaintiff’s work on the Air-conditioning Unit ? Brief analysis: The contentious issue in this case pertains to whether the type of work that led to the accident occurring to the plaintiff, Mr. Peter Olvidar, could be well within the purview of the characteristics enunciated under Section 240 (1) of this law, or the invocation of any other law which could provide relief to the injured plaintiff. It is seen that the nature of work performed by the plaintiff, in this case, fell outside the ambit of labor law Section 240 (1) .Moreover, he had not taken the necessary precautions to ensure that the equipment with which he was working was safe enough to be operationalised. It is seen that in this case, the ladder did not have required safety belts, but apparently, Peter did not feel the need for using a safe ladder during his work. Thus it could be safety deduced that the accident occurred due to lack of proper care and prudence on the part of the plaintiff, and not because of any inherent defect in the equipment itself. He was working alone on the 36th floor of the building, although it was under expressed instructions from his superior officer, who had ordered him to check the air flow in the air conditioner. During this testing, he had not relied on any tools but had worked manually, as a result of which he lost his balance and fell from a height of around 6 feet, in an awkward way, resulting in grievous injury to his person and mental equilibrium. The circumstances of the injury indicates that it was more due to lack of proper planning and care exercised during the course of the work process and not any other extraneous matter. Presented Question # 2: Did the Court err in denying summary judgment to Sheldon on the question of whether the plaintiff was Sheldon’s special employee when Sheldon has adequately established that plaintiff was its special employee? Brief analysis: The fact that the plaintiff was subcontracted to this Air Conditioning work by Sheldon, and was a salaried employee of an air conditioner maintenance company, Henderson Air Handlers. has been established beyond doubt. Hence, he was also not in the practice of wearing uniform of Sheldon Company during working hours. The liability arising out of any accident occurring to him during working has to be borne by the Company who has retained him, and not the Company in whose premises he was working during the occurrence of the accident. Since the plaintiff was a special employee of Sheldon Company, and not its regular staff, the question of any liability arising for this Company does not arise. The need for checking of air flow arouse, since the supervisor was not happy with the airflow of the air conditioner, and had instructed Mr. Peter to check the airflow at the 36th floor. Acting upon his instructions, Peter was examining the air controller in the ceiling when the accident took place. Apparently, Peter was more concerned about the work rather than the safety parameters of the ladder, which led to the accident. Question Presented # 3: Did the Court err in denying summary judgment to the plaintiff regarding the contention that the plaintiff was undertaking an activity, ancillary to the enumerated activities? Brief analysis: An activity ancillary to the main duty would be a work, or a series of work that would be necessary to achieve the proposed objective of repair of the air conditioning unit.. The scope of Section 240 (1) is broad enough to take into consideration the fact that Peter, the plaintiff, was executing orders made by his superior. But it needs to be seen that in this case, the air-conditioning unit had already been installed and put into operational use. Thus, in this case, the act which Peter was purporting to do was not within the purview of repairing as purported, or circumscribed in the Act. Any ancillary activity needs to be seen in the context of repairing of an existing structure, or work ancillary to the repairs. But the scope of the activity carried out by Peter does not fall, either within repairs or ancillary duties and therefore, cannot be enforced through cross appeal in the Court of Law. Question Presented # 4 Did the Court err in denying summary judgment to Sheldon since the plaintiff was their special employee, and also the plaintiff’s evidences were unsubstantiated by solid evidences or witnesses? Brief analysis: There were no witnesses present during the course of Peter’s fall nor was he able to prove, convincingly that the accident did not occur due to his own misjudgment and lack of care, or because of circumstantial faults which could be directly attributable to his contractor’s lack of care. It is the degree of care to be taken by Peter to ensure that he uses the right tools and equipments in a manner in which it is designed to be used, and he was so engrossed in his work that he failed to observe basic safety rules in his own conduct and mode of carrying out the work Thus it was necessary that the Company be absolved of liability in this case. Moreover, the equipment supplied was not the property of the defendant company and by using outside equipment, he had carried out the work at his own risk and responsibility. Question 5: Did the Court err in not granting summary judgment to the plaintiff when it was aware of the fact that Sheldon and Anderson worked together as a joint venture and that, while Mr. Sheldon was CEO of Sheldon Company, his wife Mrs. Christine, was the President of Henderson? Brief analysis: From the testimony given by Mrs. Christine, it is amply demonstrated that there was a nexus between both the Contracting companies. She was acting in the dual capacity of President of Henderson and also a major stakeholder in Sheldon Co. but apparently, this fact does not have any material bearing on the case under appeal. The overwhelming factor with this case lies in the fact that the plaintiff was not a regular employee of the defendant company but was contracted through Mrs. Christine for checking the air-conditioning unit. The action of Peter Olvidar could not succeed since the Court was of the opinion that he was a special employee of the Company, and thus not acceptable to any of the company’s benefits, including compensation cover, in the event of any accident while on duty. The fact that the accident occurred in the defendants’ premises and while work on the defendants’ fault equipment was being carried out is not enough justification or cause for compensatory damages for the plaintiff. Read More