The short answer is: maybe, and you should speak with an attorney experienced in construction accident cases and familiar with the applicable laws to find out.
That is because the law is always changing and developing in this area, and three recent cases decided by the Appellate Division, First Department in Manhattan have made it clearer as to when an injured worker may have a construction accident case under New York’s “Scaffold Law,” Labor Law 240(1), in situations when an object falls over onto them from the same level they are working.
First, and to be clear, this is not a new development in the law. In Wilinski v. 334 East 92nd Housing Development Fund Corp, et al., 18 NY.3d 1 (2011), New York State’s highest court in Albany, the Court of Appeals of New York, held that a worker can have a case under the “Scaffold Law” if their injuries are caused by falling objects that were on the same level as the worker when they fell over.
- Two metal, vertical plumbing pipes were left unsecured standing on the same level as Wilinksi, and after some debris from a nearby wall which was being demolished fell and struck the pipes, they fell over about four feet and landed on Wilinski, causing him injuries.
- The court found that Wilinski could pursue his case under Labor Law 240(1) even though the pipes fell over only 4 feet because of the amount of force the pipes were able to generate in that short distance and because the injuries were caused the force of gravity to the pipes.
- The court also noted, importantly, that these pipes “were not slated for demolition” at the time they fell, meaning they were not meant to fall over, at least at that point in the work. Id.
Since Wilinski, there have, of course, been other cases applying that law. However, three cases were decided in a short span in October 2019 by the state appellate court in Manhattan that applied Wilinski and, at least arguably, clarified when it might be applicable.
The first of those cases was discussed on David’s Corner previously: Nasir Ali v. Sloan-Kettering Institute for Cancer Research, et al.(October 22, 2019). The other two cases decided on October 29, 2019 are Encarnacion v. 3361 Third Avenue Housing Development Fund Corporation, et al. and Ortega v. Trinity Hudson Holding LLC, et al.
- In Encarnacion, the worker was injured in the course of disassembling a formwork structure used to build a concrete wall. While the formwork was on the same level as Encarnacion and being held together by brace frames that were attached by connector pins, the brace frame fell over and hit Encarnacion after the last connector pin was removed. The brace frame was at least 12 feet tall, weighed approximately 1,500 pounds, and wasn’t connected to any other device to hold them in place when the connector pins were removed. A witness for the manufacturer of the formwork structure testified that the brace frames should have been secured by a crane.
- In Ortega, the worker was “securing a piece of equipment he referred to as a ‘delta scaffold’ to a bracket on a wall with a ‘tieback’” and “the scaffold tipped over and pinned his hand against the bracket.” There were also two counterweights that were on the scaffold that were supposed to balance out a suspension scaffold that would later be used on the other end. The scaffold and counterweights only fell a short distance and their combined weight was over 2,400 pounds.
In both cases, the court affirmed the decisions below which granted summary judgment to the injured workers on their “Scaffold Law” claims, meaning they won the liability part of their cases without having to go to a jury. In both cases, because the falling objects were able to generate a significant amount of force during the relatively short distances they fell and because these accidents were caused by the force of gravity, Labor Law 240(1) applied. In Encarnacion, the defendants failed to provide adequate safety devices, such as a crane in Encarnacion, to prevent the objects from falling over onto the workers.
So what does this mean for workers who are injured when something falls over onto them on the site? Well, to be clear, every case is fact specific and you should consult with an attorney experienced in this area to find out. However, these recent cases seem to make clear, at least in situations where the object that falls over on the same level as plaintiff is heavy and capable of generating a significant amount of force, even when falling a short distance, there can be a case. Also, to the extent you can establish that the object that fell over should have been secured in some way through testimony or expert proof, you may even be able to win without a trial. Again, there are exceptions to everything, so speak to a lawyer.
David H. Perecmanis Founding Partner of The Perecman Firm, P.L.L.C. Over more than 40 years in practice, he has won tens of millions of dollars for clients, and has helped the firm secure recognition among U.S. News’ “Best Law Firms in America” for the past eight years in a row. To request a free evaluation of your case, call (212) 577-9325 or contact us online.