David's Construction Accident Corner

This is a very interesting case. In this decision from the Appellate Division, Second Department, the worker was operating an excavator next to a creek to remove pieces of timber that had previously formed a bulkhead. During the work, the excavator tipped or slid into the creek, injuring the operator.

The worker claimed violations of a group of NYCRR regulations, Labor Law 241(6) and 200. Con Ed, the site’s owner asked the court to dismiss the suit. The lower court did, but the Appellate Division, Second Dept. reinstated the entire claim.

The Court found the NYCRR regulations, 23-4.2(a) and 23-4.4(a), which require proper footing for certain work involving trenches and excavation, to be applicable to this case. Also, 23-9.4(c) and 23-9.5(a) which require temporary shoring or sheeting for certain work involving power shovels and backhoes and other excavating machines, were also held to be potentially applicable.

As for the Labor Law 200 claim, the Court said that this was a situation where both types of violations of that law were applicable and should not be dismissed, the one protecting workers from premises defects and the other from dangerous methods or manners of work. For the latter one, the Court said that Con Eds on-site representative and other factors gave them the requisite authority to control the site, regardless of whether they exercised that control.

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.

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.

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.