Scott J. Kreppein, Esq.: Personal Injury - Construction Accident Attorney [Falling Workers And Objects]

Construction accident litigation was one of my one of my first niche practice areas as a lawyer. I have handled numerous trials and appeals, and have published two articles on the topic.

New York State passed a series of laws in the nineteenth century, with the emergence of skyscrapers and other major construction projects, designed to ensure construction site safety. Those laws still protect workers today.

Under New York's construction safety laws, workers who are exposed to gravity related risks should always be provided with proper protective devices. New York's Labor Law 240 (1) specifically requires contractors and property owners to provide workers with “proper protection” against gravity related hazards, such as falling from a height or being struck by a falling object.

In pertinent part, the statute reads:

All contractors and owners and their agents, except owners of one and

two-family dwellings who contract for but do not direct or control the
work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure shall furnish or erect,
or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so
employed.

Statutes such as Labor Law 240(1) offer two major benefits for construction workers. First, they encourage work-site safety by motivating owners and general contractors (through awareness of responsbility and fear of liability) to strictly oversee the safety practices of their subcontractors.

Second, when workers are injured, these laws provide injured workers with an opportunity to hire a lawyer and obtain compensation for their injuries through a personal injury lawsuit. In general, workers who are injured on the job are entitled to Worker's Compensation, but the trade-off for Worker's Compensation is that injured workers cannot sue their employer for work-related injuries. By placing ultimate responsibility for worksite safety on the owners and general contractors, New York's laws provide injured workers with a responsible (and usually well insured) party other than their employer whom they may sue for damages in addition to Worker's Compensation.

Although the statute appears straight-forward (the relevant portion contains less-than 100 words), interpreting the precise language of Labor Law 240 is one of the most frequently and aggressively litigated issues in the New York Courts. Defenses include, for example, that owners of one- or two-family dwellings may be exempt from liability; the statute only protects certain enumerated activities, not routine maintenance; not every fall qualifies as a gravity-related risk; and an injured worker may not recover if they are entirely at fault for their own injuries.

Below is a list of the leading interpretive cases from the New York Court of Appeals, with links to each decision.

LEADING CASES

Strangio v Sevenson Envtl. Servs., Inc., 15 N.Y.3d 914, 913 N.Y.S.2d 639 (2010)(triable issue of fact as to whether defendant provided "proper protection.")

Belding v Verizon N.Y., Inc., 14 N.Y.3d 751, 898 N.Y.S.2d 539 (2010) (Applying bomb blast film to windows counts as a "significant alteration").

Gallagher v New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010)(summary judgment granted to plaintiff despite testimony from general contractor that safety harnesses were available, where there was no evidence that the injured worker knew where the harnesses were or had been instructed to use them).

Holly v County of Chautauqua, 13 N.Y.3d 931, 895 N.Y.S.2d 308 (2010)(question of fact as to whether scaffolding provided "proper protection.")

Runner v. New York Stock Exchange, 13 N.Y.3d 599 (2009)(where plaintiff was required to hold one end of a rope, acting as a counterweight while an object was lowered, and was pulled up into the make-shift hoist, injuring his hands, Labor Law 240(1) was applicable because "a pulley or hoist should have been used... the single decisive 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.")

Quattrocchi v F.J. Sciame Constr. Corp , 11 NY3d 757 (2008)(wooden planks that were used as a make-shift shelf above a door frame and fell, striking a worker, constituted the type of falling object risk that the statute protects against).

Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333 (2008) (the term "owner" includes an out of possession landlord)

Broggy v Rockefeller Group, Inc., 8 N.Y.3d 675 (2007)(although it does not cover "routine household window washing," "cleaning" is its own category under the statute; it does not need to be connected with a construction site and applies equally to interior and exterior cleaning).

Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550 (2006)(injured worker was entirely at fault for his own injuries where a ladder of the proper height was available to him, but he chose instead to stand on the top-cap of a short ladder).

Outar v. City of New York, 5 N.Y.3d 731 (2005)(a dolly that rolls off a ledge and strikes a worker is the type of falling object risk that the statute protects against).

Montgomery v. Federal Express Corp., 4 N.Y.3d 805 (2005)(Plaintiff was the sole proximate cause of his own injuries where he chose to use an upside-down bucket rather than an available ladder).

Stejskal v Simons, 3 NY3d 628 (2004)(one- or two-family dwelling exception applies where the "purpose of the construction" was to convert a multi-family dwelling into a one family dwelling).

Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280 (2003). (If an injured worker was somewhat at fault for their own injuries, but not entirely at fault, they are nonetheless entitled to be fully compensated for those injuries. “Contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury… Section 240 (1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions.”)

Panek v County of Albany, 99 N.Y.2d. 452, 458 (2003)(Removing a large air conditioning units two weeks before a demolition project was not part of or ancillary to the demolition, but was a "significant alteration" which is also an enumerated activity under the statute).

Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526, 526 (2003)(routine maintenance for normal "wear and tear" is not a significant alteration to which the statute applies).

Narducci v. Manhassett Bay, 96 N.Y.2d 259, 267 (2001)(a falling window pane that was unrelated to the construction is not a falling object risk that is protected by the statute).

Bond v. York Hunter Constr., Inc., 95 N.Y.2d. 883, 885 (2000)(slipping while climbing out of a construction vehicle is not an elevation related risk calling for a protective device).

Melo v. Consolidated Edison Co., 92 N.Y.2d. 909 (1998)(§ 240 has “historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites ... in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites”)

Weininger v Hagedorn & Co., 91 N.Y.2d. 958, 960 (1998)(Running computer and telephone wires constitute a significant alteration, and there was a question of fact as to whether plaintiff, who fell while trying to forcibly yank a cable wire through a hole, was the sole proximate cause of his own injuries).

Joblon v. Solow, 91 N.Y.2d., 457 (1998)(“Defining [the terms of labor law 240(1)] with precision… is a highly elusive goal”... installing a built-in wall clock is a significant alteration).

Brown v. Christopher St. Owners Corp., 87 N.Y.2d. 938 (1996)(“the ‘cleaning’ encompassed under the statute does not include the routine, household window washing… [but does include] the cleaning of all the windows of a large, nonresidential structure such as a school")

Khela v. Neiger, 85 N.Y.2d 333 (1995)(whether a property is a one- or two-family is determined by the site and purpose of the work being performed).

Mandelos v. Karavasidis, 86 N.Y.2d 767 (1995)(there was a question of fact for a jury as to whether two neighboring yet jointly owned two-family dwellings were entitled to the one- or two-family dwelling exception, both due to the occupancy and the fact that the construction may have enhanced commercial, rather than residential, usage)

Misseritti v. Mark IV Constr. Co., 6 N.Y.2d 487, 491 (1995) (a wall that collapses after having been finished is not the type or risk protected against by the statute because Labor Law 240(1) applies to during the course of construction, not to gravity related risks from a completed structure).

Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d. 494 (1993)(back strain caused by repeatedly stretching is not a gravity-related risk).

Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991)(the risk of stepping in a bucket of oil is not a gravity-related risk and thus not protected against by the statute)

Van Amerogen v Donnini, 78 N.Y.2d 880, 880 (1991)( “The [one- or two-family dwelling] exception may be extended only so far as statutory language warrants, and all doubts should be resolved in favor of statute's general provision rather than exception”).

OTHER RESOURCES