Articles Posted in Construction Accident

By Anthony H. Gair

In Gasques v. State of New York, 15 N.Y.3d 869, 910 N.Y.S.2d 415 (Ct. Apps. 2010), , a two paragraph decision with regard to Section 240(1) the Court stated as follows:

“Claimant Wanderlei Gasques was injured while repainting the inside of a leg of the Kosciuszko Bridge, using a ‘spider scaffold.’ His hand was injured when it became caught between the scaffold and the leg of the bridge, while the scaffold was ascending.

With respect to claimants’ Labor Law §240(1) cause of action, the parties agree that Gasques’s hand was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge. This injury was not the direct consequence of the application of the force of gravity to an object or person (see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 604, 922 N.E.2d 865, 895 N.Y.S.2d 279 [2009]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]). Therefore claimants’ Labor Law §240(1) claim was properly dismissed.”

On first reading this decision one might conclude that in future cases a defendant might argue that there is no Section 240(1) liability if;

1. A motorized hoist or scaffold is involved.

2. Gravity is not involved if the hoist or scaffold is going up.

3. No 240(1) liability because no elevation related differential.

If one watches the oral argument on The New York Court of Appeals web site one could reasonably conclude that the basis of the decision was that the scaffold was going up since The Justices asked numerous questions as to how gravity could be involved since the scaffold was going up.

It is submitted that the basis for the Court’s decision had nothing to do with the scaffold being motorized or the fact that it was going up but the fact that there was no elevation related differential involved. This seems clear since the Court cited Runner v. New York Stock Exchange, supra.
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In Pitts v. Bell Constructors, Inc.,et.al., 2011 NY Slip Op 1220 decided February 18, 2011 The New York Appellate Division, 4th Department reversed the lower court’s granting summary judgment to the defendant on plaintiffs’ Labor Law Section 240(1) cause of action and granted plaintiffs’ cross motion on their Section 240(1) claim.

The plaintiff was injured when he fell from a column form in a trench on which he had been standing into the trench. The Court pointed out that while a fall into a trench from the ground on either side is not covered by 240(1) this was not the case in this accident holding as follows;

“Plaintiffs established theirentitlement to judgment as a matter of law by demonstrating that” plaintiff was not furnished with the requisite safety devices andthat the absence of [such] safety devices was a proximate cause of his injuries” (Williams v City of Niagara Falls, 43 AD3d 1426, 1427).Although generally a fall into a trench from the ground on either side is not covered by the statute (see e.g., Bradshaw v National Structures, 249 AD2d 921; Williams v White Haven Mem. Park, 227 AD2d 923), where, as here, a plaintiff is working or walking over a plank or similar support suspended over a trench and falls into it, the statute applies (see Wild v Marrano/Marc Equity Corp., 75 AD3d 1099).”

In this New York Construction Accident case The Second Department granted plaintiff”s motion for summary judgment on his 240(1) cause of action. The facts as set forth by the Court were as follows;

“In August 2004 the plaintiff was working as a carpenter on a project involving renovation of office space for the lessee of that space, the defendant Orthopedic Associates of Dutchess County, P.C. (hereinafter the defendant). The plaintiff alleged that debris, including metal studs 10 to 12 feet long, were thrown down a chute from the fourth floor of the subject building, and that he was responsible for unclogging the bottom of the chute on the ground floor. He further alleged that he was injured when, while clearing the chute, he was struck on the hand and lower arm by one of those metal studs that had either been (a) deposited into the chute on the fourth floor and fell down the interior of the chute before striking him as he worked on the ground floor, (b) deposited into the chute on the fourth floor, and became blocked by a stud lodged near the bottom of the chute, but again began to fall when the plaintiff dislodged the lower stud, or (c) lodged near the bottom of the chute, but had become dislodged when another metal stud fell several stories down the interior of the chute and struck it.”

In granting the motion the Court citing Runner stated, ” The Court of Appeals has recently stated that “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” (Runner v New York Stock Exch., Inc., 13 NY3d at 603). The Court went on to state;

The New York State Bar Association has chosen Howard S. Hershenhorn of Gair,Gair,Conason,Steigman,Mackauf,Bloom and Rubinowitz as The Overall Planning Chair of its annual Construction Site Accidents Program to be held on Nov 19, Dec 3, and Dec 10. Our Partner, Christopher L. Sallay is the Assistant Planning Chair. Also Participating from our Firm are Ben B. Rubinowitz, Chair of The Long Island Program. Robert L. Conason and Anthony H. Gair will also be speaking at the program. In addition to serving as overall Planning Chair, Howard S. Hershenhorn will be demonstrating both plaintiff’s and defendants’s opening statements at The New York City Program as will Ben B. Rubinowitz at The Long Island Program. Robert L. Conason will be giving a demonstration of a Plaintiff’s Closing Argument at The New York City Program. Anthony H. Gair will speak on The Current State of the Labor Law at The Long Island and New York City Programs.

In describing the program Mr Hershenhorn said, “We are honored to be asked to chair this important program on Construction Site Accidents. We have always sought to share our expertise with other attorneys in the field and we have asked some of the very best attorneys throughout New York State to join us.” GGCSMBR has achieved some of the largest awards in the Country for those who have been injured as a result of safety failures at Construction job sites. The firms expertise has brought them National acclaim in the field. Click on the following for information for each location.

(F) November 19, 2010 Albany New York State Nurses Association

This Seminar presented by The New York State Bar Association is still available. A construction worker involved in a work related accident in addition to a workers’ compensation claim may have a third party law suit against the general contractor and/or owner of the construction site pursuant to Sections 200, 240 and 241(6) of the New York Labor Law.

The first half of this seminar provides an overview of the case law, statutes and regulations governing construction site accidents. There is also discussion concerning the important aspects of the relationships between and among the carriers and their insureds. In the second half of the seminar, presenters address strategic, evidentiary and tactical concerns and provide live demonstrations of critical components of the trial of a labor law case. Panelists offer advice on jury selection, opening and closing statements, cross-examination and trial strategies. New and experienced practitioners alike will benefit from this seminar’s coverage of all the major aspect of a labor law trial.

Our Partner, Howard S. Hershenhorn was The Overall Planning Chair Of This New York State Bar Association Program and our Partner, Christopher L. Sallay was the Assistant Planning Chair. To order directly from The NYSBA click here.

Our Partner Howard Hershenhorn commented on the verdict in The New York Times;

“A lawyer for the family of Wayne Bleidner, the crane operator who died in the collapse, said he understood the judge’s decision. “From what I heard as the evidence was presented at this trial, there wasn’t enough evidence that he acted in a criminal manner to bring this crane down,” said the lawyer, Howard S. Hershenhorn.

“But Mr. Hershenhorn said there was still a strong case for civil negligence against Mr. Rapetti and others. A Manhattan judge has already found the general contractor on the project and the owner of the building civilly liable under New York labor law for the seven deaths. A trial to determine damages is scheduled to begin next month, Mr. Hershenhorn said.”

In Barrios v. City of New York, et.al., decided on July 13, 2010, The Appellate Division, Second Department, affirmed the granting of Summary judgment against a prime contractor/construction manager despite the prime contractor not being in privity of contract with plaintiff’s employer. In holding the defendant contractor to be a statutory agent The Court stated;

“[w]here a separate prime contractor has been delegated the authority to supervise and control the plaintiff’s work, the contractor “becomes a statutory agent’ of the owner or general contractor” (Russin v Louis N. Picciano & Son, 54 NY2d at 318; see Walls v Turner Constr. Co., 4 NY3d 861, 863-864). Here, although Skanska was not in contractual privity with the plaintiff’s employer, the record establishes that Skanska had been delegated a significant degree of authority to supervise and oversee on-site safety matters.”

The Court further held that the fact that defendant was a construction manager and not a general contractor was not dispositive;