A Re-Examination Of What Is A Structure Under Labor Law 240(1)
The Second Department recently examined what a structure is under Labor Law 240 in the case of McCoy v. Kirsch at Tappan Hill, Inc., 2012 NY Slip Op 06128 (2d Dept. 2012). The trial court had granted plaintiff’s cross-motion for summary judgment on the issue of liability on the cause of action pursuant to Labor Law 240(1). The Second Department affirmed the order.
The plaintiff was a truck driver who was employed by a non-party, and he was disassembling a chupah, a 10 foot high device made up pipe, wood and a fabric canopy at the top frequently used during weddings in the Jewish religious tradition. Metal pipes 10 foot long and 3 inches wide were connected to each other, and the vertical supports were attached to 4 steel plates in the floor. Plaintiff was using a 6 foot high aluminum ladder while disassembling the chupah. The ladder allegedly had 2 feet missing from it. Plaintiff used a pipe wrench and other tools in the disassembly.
While disassembling the chupah and even while a co-worker was holding the ladder, the ladder slipped and plaintiff fell to the floor from the third rung from the top.
The trial court found that the chupah was a structure within the protections afforded by Labor Law 240, and the Second Department affirmed. After reviewing the general application of Labor Law 240(1), the court reviewed what is meant by the word structure. They noted that over 100 years ago the Court of Appeals found a structure was not limited to houses or buildings and that the word structure was to be used and considered broadly. A structure may include “any production or piece of work artificially built up or composed of parts joined together in some definite manner.” (cite omitted). The court noted then that structures “by implication, may include constructs that are less substantial and perhaps more transitory than buildings.” By example, the court noted different instances when structures were found to apply under 240 such as when a utility pole is attached with hardware and cables, a ticket booth at a convention, a substantial freestanding gasoline sign, a shanty in an industrial basement that was used for storing tools and equipment, etc. All of these items were found to be a structure because they met the standard that “constituent parts be artificially built up or joined together in a definite, deliberate manner.” The court also noted instances where a structure is not found to be applicable, such as temporary decorations to a building used as a set for a television film, a sign hung from a ceiling, commercial dish washer machines, and even, in another case, a “decorative wooden disc suspended from a ceiling for use as a ceremonial wedding canopy”.
The court held that to determine what is a structure is a fact specific matter which must be determined on a case by case basis. The factors to be considered include, “the item’s size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling.” Based upon these factors, the court reasoned that the chupah was a structure within the intended scope of Labor Law 240(1). The chupah was constructed of various interconnected pipes secured to steel plates, and hand tools were required to assemble and disassemble it.
The court cautioned, however, that not every chupah is necessarily a structure. It would require a case by case analysis and consideration of what the purpose of the chupah was and how, for example, was it simply decorative, etc. Because they found that this was a collection of assembled pieces of pipe, wood, metal and fabric, the chupah in this instance was considered a structure, and therefore the plaintiff was a protected worker under Labor Law 240.
Whether one agrees or not that a chupah, such as the one that was used in this situation, should be considered a structure under the Labor Law, the case is nevertheless noteworthy for outlining exactly what a practitioner should consider in analyzing when a structure is or is not a “structure”, regardless of its more commonly used name.