Close Only Counts In Horseshoes, Hand Grenades and Labor Law 240(1)
June 1, 2010 Posted By Douglas R. Rosenzweig Construction Claims
In a recent decision, the Court of Appeals in Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009), held that Labor Law 240(1) will apply to a worker even if that worker did not fall from a height and was not hit by the object that caused his injury. This decision will be greeted with cheers from the plaintiff's bar and with derision from the defense bar and contractors doing business in New York State.
The facts of Runner are relatively straight forward. Victor Runner and several co-workers had been directed to move a large reel of wire weighing 800 pounds down a set of about four stairs. To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a ten foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jab on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two (2) others began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights towards the metal bar. Plaintiff was drawn horizontally into the bar injuring his hands as they jammed against it.
Chief Justice Jonathan Lippman, writing for a unanimous court, held that, "Manifestly, the applicability of the statute [Labor Law 240(1)] in a falling object case such as the one before us does not depend on whether the object has hit the worker. The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object." The Court held that in this case, the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel.
The Court's ruling could extend the scope of Labor Law 240(1) cases to a significant degree. The plaintiff's bar will claim that accidents caused by workers who are injured diving out of the way of falling objects or otherwise injured by some tangential effect of gravity are entitled to the statute's protection.
Accordingly, defendants will now, more than ever, have to rely on allegations that the plaintiff was a recalcitrant worker or the sole proximate cause of his accident in order to escape Labor Law 240(1) liability. Ironically, the First Department, which is generally pro-plaintiff in connection with Labor Law 240(1) claims, has handed down a recent ruling which may well be beneficial to defendants.
In Cherry v. Time Warner, Inc., 885 N.Y.S.2d 28, 2009 NY Slip Op 6226 (1st Dept. 2009) the plaintiff was injured when he fell eight (8) feet off a scaffold. The scaffold had guardrails on only two of its four sides. The owner and the contractor alleged that the plaintiff was instructed not to use scaffolds without guardrails at elevations above four feet. The trial court denied both parties' motions for summary judgment holding that a triable issue of fact existed as to whether safety guardrails were in place on the scaffold from which the worker fell, and if they were not in place, whether they were made readily available on site for the worker's use. The Court held that, "the requirement of an employee's 'normal and logical response' to get a safety device rather than having one furnished or erected for him was limited to those situations when employees knew the exact location of the safety device or devices and where there was a practice of obtaining such devices because it was a simple matter for them to do so." Id. at 33.
Although the holding of this case appears limited, it gives owners and contractors a clear directive which, if followed, may shield them from Labor Law 240(1) liability. On every jobsite, workers should know the exact location of all safety devices and it should be standard practice to place safety devices in areas where it is simple for workers to obtain and use them. In fact, safety meetings should be held with regularity on these points and workers should be made to sign in and note their attendance and understanding of the instructions. If it can be shown that a plaintiff failed to use a safety device that was properly provided and readily accessible, a motion for summary judgment should be granted. In such cases, defendants will argue that it was the normal and logical response for a worker to use the provided safety devices prior to commencing his work.
In sum, it is now the law of New York State that in falling object cases, the object need not strike the plaintiff directly in order to invoke the protection of Labor Law 240(1). However, liability can be potentially avoided with proper attention to providing appropriate safety devices in locations that are known and readily accessible to all workers.