Hi, it’s David Perecman, owner of the Perecman Firm PLLC. This is my monthly column, “David’s Corner.” In it, I will talk about new developments in the area of New York construction accidents.
I am going to try to stick to discussing a selection cases that have been decided in the last month, but since this is a new column, I want to just go back a bit to earlier this year. In my fist installment, I talk about the case William Fabian Hoyos v. NY-1095 Avenue of the Americas, LLC, et al, decided by the Appellate Division, First Department in Manhattan. The decision made by the court involved a progressive and correct interpretation of the law.
To understand what the court decided, you first need to understand that the laws that protect construction workers in New York are powerful and can be used by a construction worker injured on a construction site to get properly compensated for an injury. Under these laws, for example, if an entire new building is being built or a site is being excavated, the owner and general contractor are legally required to provide proper safety devices and a safe place to workers anywhere on the project site.
But what happens if the project a worker is on is only in part of the building? Say they only work on a project that involves five floors in a 25-story building, and they are injured because of an unsafe loading dock on the ground floor that isn’t technically part of their project? Are they considered on the construction site so that they are protected by New York’s laws?
The answer, according to Hoyos, is yes.
While the insurance company’s lawyers argued that was an improper expansion of the law, the appellate court didn’t agree. So, a worker injured on their way into a construction site is covered even if the entrance, where no actual construction is going on, is many floors below. A worker injured in a situation like this might not think they should even bother to call a lawyer, but that’s exactly why you should call. Find out your rights by speaking to an attorney, then make decisions.
By the way, we represented Mr. Hoyos in his case. I was honored to argue the appeal on his behalf.
Here, we have the Court discussing the law regarding one of the most typical types of construction site accidents, a slip and fall. In this case, it was due to snow covered pipes on the ground next to the worker’s shanty. The worker slipped on the pipes.
Since this is a non-gravity case, it must only involve Labor Law § 241(6) or 200. For a plaintiff to win the Labor Law §241(6) case, they must show that the pipes somehow violated a NYCRR regulation. We know that. He named the tripping regulations NYCRR 23-1.7(e)(1) and (2). The first regulation 23-1.7(e)(1), creates liability for a broad category of hazards, “obstructions or conditions which could cause tripping,” but that is only if it’s in a passageway. Passageway is defined as “a typically narrow way connecting parts of a building” or doorways and areas immediately adjacent to them. Here, since it was an outdoor open area, it’s not a passageway.
But the Court said that 23-1.7(e)(2) can apply since it covers “working areas” not just passageways and is violated if there are scattered tools or materials that cause the fall. The Court said that the cause of the accident may have been the pipes themselves (scattered materials) as well as the snow that may have been the dangerous condition that caused the accident.
Here the Appellate Division, First Department Court applied a principle we have come to understand only over the past 10 or so years: that objects don’t have to fall straight down onto a worker and don’t have to fall long distances for Labor Law § 240 to apply. Here, a heavy object fell a short distance and tips; Labor Law § 240 still applies particularly where the lifting device is inadequate to hold it.
This is an interesting case from the Appellate Division, Second Department.
People who argue that Labor Law § 240 is unfair, take heart. Here, the Court acknowledged that the worker doesn’t just win because he says the scaffold moved causing him to fall. Since a witness says that he was told by the worker that he just tripped and fell, a jury has to decide the case.
The Court also spoke about another issue that pops up in these cases: who is a general contractor under Labor Law § 240? The answer, in a nutshell, is someone who acts like a general contractor and has the authority and control over the worker’s work. Here, if you really didn’t control safety you walk away from 240 liability.
Finally, the court kept Rockledge Scaffold in the case because even though Labor Law § 240 doesn’t apply to them, plain old rules about negligence do apply to them and if the injured worker proves the scaffold moved and shouldn’t have, you could lose.
This case is a mixed bag. The worker injured himself while climbing up a broken ladder attached to a building, while doing a project at the building. He was climbing the ladder to screw it the top rung which was missing a bolt.
This is an example of what I believe to be an unduly harsh interpretation of the Labor Law § 240(1) and Labor Law § 241(6) case law by the Appellate Division, Second Department.
Here, a worker climbed up a ladder that was fixed to a building’s wall and led to the roof in order to replace a bolt that was missing from the top rung. He grabbed onto the top rung while climbing and fell.
The court simply said he didn’t make out a strong enough case to win summary judgment on the gravity statute, Labor Law § 240(1). I think the court simply was bothered because the worker did something that was not too well thought out. But that’s the point in Labor Law 240 cases. A worker’s negligence can’t be the sole cause if another cause is the failure to provide proper protection. It was the obligation of his boss or the general contractor to have him use another device or to prevent him from using the fixed ladder. Once they failed in that obligation, Labor Law 240 was violated. And that’s where it should have ended, in my humble opinion.
On the non-gravity Labor Law § 241(6) theory, the court said there is a question if it was integral to the work and again denied summary judgment even though they said he made out a prima facie (on its face) violation. Again, I think they just felt the worker was foolish and didn’t want him to win summary judgment.
My question is: where was the boss while all this foolishness was going on? If you don’t tell a worker how to do the job safely, they will use what is there just to move the job along, which is a benefit for the boss. The boss is always fine with that until you get hurt. Then it suddenly becomes the worker’s fault.
This is a useful case for lawyers because it covers a lot of topics, and it also explains a lot for workers to know. The case restated the law for the “scaffold law” or Labor Law 240(1) that when a worker is injured at a construction site because a part of their elevation safety device (ladder, scaffold, hoist, ropes, etc.) broke, failed, collapsed or moved, they are entitled to what we call summary judgment. That means the worker already wins the “who is legally responsible for their accident” part of their case without a trial, and would only have a trial for a jury to determine how much compensation they get – the money decision.
The rest of the case is somewhat technical. The case explains what happens when one of the participants/parties to the lawsuit makes or allows evidence to disappear. Here, it was the broken plank. The court can give them some very stiff penalties that help the other parties to the case, including the worker. The court also spoke about the rules and laws between the contractors. In these cases, the contractor, owners, and sub-contractors try to put the blame on each other since they already lost and probably knew they were going to lose against the plaintiff, the injured worker.
You Can't Sue Your Employer
We see the court here saying what we’ve explained before – that you can’t sue your employer. However, you can get workers’ compensation benefits from them. On a construction site, you can sue other parties like the owner and general contractor. They are responsible for the things done, not done, or not done safely, by any contractor, even if the owner or general contractor didn’t see it or know about it. It’s their responsibility to make sure the site is safe.
This case also shows how important good lawyering is. While I can’t be sure what the worker’s lawyers did there, I know they didn’t show the Court that the contractor should have known that it was likely that the roof that partially collapsed would do so; so no summary judgment. That doesn’t mean the worker lost, it only means that that worker will have to win the “who is responsible” part at a trial – unlike the MacDonnell case I mentioned above where the worker won because a scaffold collapsed. The difference is that the court presumes the contractors know safety devices like ladders and scaffolds can break, fall, or cause a worker to fall. Roofs shouldn’t just fall or collapse. But if the worker’s lawyer shows that the contractors should have known the roof could partially collapse, they would win summary judgment too.
I have handled countless cases over the years where a worker used an A-frame ladder in the closed position because they didn’t have the room to open it, only to have the ladder slide out and cause the worker to suffer a serious injury. Since they don’t really have six-foot straight ladders available, workers, knowing that the boss wants the job done, close and lean the ladder on a wall. Far too often, their bosses are well aware of this dangerous situation.
The Gillett case made it clear that those workers don’t just get their cases thrown out of court. The worker has the right to present their case to a jury.
I should mention that there are also similar “closed A-frame” cases where the worker doesn’t even have to present the case to a jury. The court instead says, if that’s what happened you win. The case is either then settled or you present your case to a jury who only decide how much you get because you already won the case that they are at fault.
Debris Causes Accident
In the Simmons case, a plumber was injured when a compressor fell a few inches off a pallet while being moved. The Court decided that he can sue because the pallet got stuck on debris on the floor.
When a worker comes to my office and tells me how their accident happened, they really don’t care whether they have a case because of Labor Law section 200, 240, or 241(6). They just want a chance to be made whole again.
Here, where the compressor fell three to six inches off the pallet, it was not a significant enough distance for section 240 to apply. That law provides protection for workers injured due to a lack of safety devices to protect them from gravity-related hazards. Typically, it applies when they fall or an object falls on them.
But sometimes an object may only move a small distance downward, but because of its weight causes a lot of harm. One such case decided a few years ago was Kempisty v. 246 Spring Street, LLC, et al. Our firm won that case after an appeal to the Appellate Division. There, a four-ton steel block was being hoisted by a crane and, as soon as it was lifted, it moved sideways catching the heel of Mr. Kempisty, a union dock builder, in between that block and another block on the ground. My theory was that when a block moves like that upon being lifted, it’s because it is swinging to get to its lowest point, like a pendulum. I hired an expert who explained what I knew to the court, that it was from gravity. We won, and the case went on to a trial on damages where the jury awarded close to $8 million and settled after for $7.25 million.
But in this Simmons case they couldn’t show it was gravity, but it was debris on the site and that was enough for the court to allow the case to proceed under Labor Law 241(6).
Construction worker wins summary judgment where worker falls from scaffold without rails.
This was a simple case where a worker fell from a scaffold that had no rails nor any other safety device to prevent them from falling, and they won summary judgment. This case doesn’t discuss it, but workers should know that they don’t have to have a witness to win or even to win summary judgment. It helps but it is not required.
A fire marshal who inspecting the sprinklers can bring a suit under the laws protecting construction workers if he trips on debris at the site during ongoing construction.
A worker who uses a ladder unsafely can still win summary judgment.
In these kind of cases, it’s not always easy to explain why the worker can and should win, but they often do. The whole idea of Labor Law 240, the “scaffold law,” is that scaffolds and ladders are dangerous, period. Workers can and will fall. So here, even though the worker set the ladder up sideways and straddled both sides because he was on the sidewalk and he had to keep clear of pedestrians, he won summary judgment. He won because a worker’s partial fault doesn’t mean he loses. The owner and general contractor were required to provide a safer device and are required to make sure the ladder doesn’t fall. They also did not prove that the worker was instructed to use another safer device and refused to do so.
The Perecman Firm, P.L.L.C.'s team of NYC personal injury attorneys have recovered more than $400 million in verdicts and settlements for their clients. We understand the financial and emotional toll a serious accident can have on your life. That’s why we dedicate ourselves to maximizing your recovery and securing what you deserve.
Construction Accident. Union sheet metal worker who fell from ladder.
Construction Accident. Union worker fell from suspension scaffold sustaining injury to back.
Construction Accident. Laborer fell from suspended scaffold.
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