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Labor Law § 240(1) is not Automatically Applicable Every Time a Worker is Injured by a Falling Object

July 1, 2014 • Posted By Joseph A. French & Emma Christman • Complex Litigation, Insurance Coverage

Guallpa v. Leon D. DeMatteis Constr. Corp., 2014 NY Slip Op 03768 (App. Div., 1st Dept.), May 27, 2014

The First Department affirmed the holding of the Supreme Court, Bronx County, which denied plaintiff’s motion for summary judgment as to liability under Labor Law § 240(1) and Labor Law § 241(6), and granted the defendant’s cross motion for summary judgment to dismiss the claims under Labor Law § 240(1) and Labor Law § 241(6).

The claims arose after Guallpa injured his right knee while working at a construction site.  Present at the construction site were concrete stones on wooden pallets that were covered with a plastic tarp to keep them dry.  Guallpa was injured while walking one of the pallets when a stone block weighing about 25 pounds fell and hit him on his right knee.  There is no evidence in the record regarding how the stone block fell.

This case looked to Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2014], when holding that “[s]ection 240(1) does not apply automatically every time a worker is injured by a falling object.”  Rather, the relevant question is “’whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.’” (quoting Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). The plaintiff must show that the block fell because of an absent or inadequate safety device that would be considered by the statute. Under § 240(1), in order for something to be designated as a safety device, it must have been used to “give proper protection” to the worker.

Plaintiff argued that his injury occurred because the plastic tarp covering the concrete stones were not properly secured. However, a plastic tarp is not an object that needs to be secured within the meaning of § 240(1). There also was not any implication that the tarp was the cause of plaintiff’s injury. The plastic tarp was used to protect the concrete stones from getting wet, not to protect the workers. Because the tarp was not used to protect the plaintiff, specifically the “risks arising from construction work site elevation differentials,” § 240(1) is inapplicable. (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).

The § 241(6) claim asserted based on a violation of Industrial Code § 23-2.1(a)(1) was also correctly dismissed because the accident occurred in an open work area, not a passageway or a walkway. Therefore, that section of the Industrial Code is not relevant.

This decision is favorable, as it limits the liability of the contractor under § 240(1).  A worker cannot automatically assume coverage any time he is injured by a falling object, but rather the worker must establish that cause of the falling object was because of the inadequacy or absence of a safety device devised under § 240(1).