David's Construction Accident Corner

This case involves the intersection of a few relatively common scenarios that pop up in the area of construction accidents: falls off ladders, A-frame ladders that are used in the closed position, and electric shocks that precipitate falls. The Appellate Division, First Department decided in favor of the injured worker that Labor Law 240(1), the “Scaffold Law,” was violated, with two judges dissenting. This decision accurately reflects the realities of working in the construction trades and is an important one to know if you are a construction accident attorney in New York.

Cutaia was working as a plumbing mechanic to install plumbing piping for a renovation project. He was using a 10-foot tall A-frame ladder to do his work. At the time of the accident, he was working in an area that was not large enough for him to be able to open the A-frame ladder completely and so, therefore, he folded the ladder closed and leaned it against the wall. He climbed the ladder and when he grabbed onto piping, he received an electric shock that knocked him off the ladder.

The majority of the Court based their decision on the following: 1) “the ladder could not be opened or locked” and the “only way [Cutaia] could gain access to his work area” was by “folding up the ladder and leaning it against the wall”; 2) “the ladder was not anchored to the floor or the wall”; 3) there were no other safety devices provided to him and an expert opined that Cutaia should have been given a more stable device.

Todd Dahlia v. S & K Distribution, LLC, et al. (April 24, 2019)Felix Colon v. Third Avenue Open MRI, Inc., et al. (May 28, 2019)Robert Wass v. County of Nassau, et al. (June 12, 2019)Kevin McCarthy v. City of New York, et al. (June 26, 2019)

In this installment of David’s Corner, we have four cases that discuss one of the most important topics for New York construction accident lawyers to consider when deciding whether there is a case under New York’s Labor Law: was the worker performing an activity that is enumerated in the statute? In order for the Scaffold Law, Labor Law 240(1), to apply, the worker must be employed on the site and engaged in “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

Dahlia, Colon, and Wass all involved the question of whether the worker was engaged in repairing or routine maintenance, which is not covered by the law. Dahlia and Colon had their cases thrown out because the courts found they were engaged in routine maintenance. Dahlia was an HVAC service technician that was merely replacing a belt that was missing from the heating unit, which usually needed replacing once a year, and didn’t involve any power tools. The courts have held that where all the work required is “replacing component parts that require replacement in the course of normal wear and tear,” that is routine maintenance and Labor Law 240(1) does not apply. Colon was a handyman who fell off a ladder when climbing it.

The worker here was a landscaper who was injured while doing landscaping on the 5th floor roof at John Jay College in New York City. He was detaching a bag of soil that weighed at least 2,500 pounds from a crane that had hoisted the bag up to the roof, and the crane lifted causing the straps connecting the bag to the crane to catch plaintiff’s hand and lift him off the roof. Plaintiff then fell to the roof below. The Court said that the workers’ Labor Law 200, 240(1), and 241(6) claims could survive because Turner had direct authority over the crane operation. They also said that because the worker’s injuries resulted “directly from the application of the force of gravity to the object,” here the bag of soil, that the worker was entitled to win his Scaffold Law claim and go to trial just for damages.

This is a great case where the construction worker won summary judgment on his Labor Law 240(1) claim. The injured worker was insulating air conditioning ducts in the kitchen ceiling of a restaurant site under construction and was injured when he fell from an A-frame ladder. There was a bit of a mess here because nobody witnessed the accident, the worker did not remember the fall. The worker’s wife said he told him that the ladder moved, causing him to fall. The plaintiff’s foreman testified that he actually fell from a scaffold because he saw the plaintiff on a scaffold when he went to get coffee and then found him lying on the floor near the scaffold when he returned. The general contractor’s superintendent heard a noise and impact and then found the worker on the ground near the scaffold. Despite all of this, the Court found that the worker wins because he would win whether he fell off a ladder or a scaffold so it does not matter because whatever he did fall off of was not properly safe for the job. The Court said he wins under the “ladder version,” because he had to stand on the second step from the top because that was the only way to reach the ducts above and the ladder fell and that he won under the “scaffold version” because the scaffold had no guardrails.