Forklift Accidents

Published on: December 13, 2012

New York Construction Accident Law: ELEVATION RELATED DIFFERENTIALS AND THE REJECTION OF THE SAME LEVEL RULE

In Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1, 935 N.Y.S.2d 551 (Ct. Apps. 2011) The New York Court of Appeals rejected The Same Level Rule first enunciated by The Court in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995]. The Rule precluded recovery under Labor Law §240(1) where a worker sustained an injury caused by a falling object whose base stood at the same level as the worker.

In order to understand the holding in Wilinski, one must consider what was transpiring at The Court at the time of the decision. There was an obvious philosophical difference with regard to the reach of 240(1). Judge Piggot led a faction consisting of him and Judges Graffeo and Read who interpreted 240(1) more restrictively and a faction led by Judge Lippman together with Judges Ciparick and Jones who interpreted 240(1) more liberally with Judge Smith as the swing vote. With the untimely death of Judge Jones and the retirement of Judge Ciparck at the end of the year it will be an interesting 2013 regarding The Court’s holdings in 240(1) cases. The majority opinion was written by Judge Ciparick who also wrote the opinion in Misseritti. She was joined by Judges Lippman, Jones and Smith.

In Wilinski The plaintiff and co-workers were demolishing brick walls at a warehouse. Previous demolition of the ceiling and floor above had left two vertical plumbing pipes unsecured. The pipes rose from the floor on which plaintiff was working approximately ten feet. Debris from a nearby wall that was being demolished hit the pipes causing them to fall over both of which struck the plaintiff who was 5’6″ tall. The Court stated the pipes thus fell approximately four feet. In rejecting the same level rule Judge Ciparick writing for the majority stated:

“Some New York courts have interpreted our decision in Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 657 N.E.2d 1318, 634 N.Y.S.2d 35 [1995] to preclude recovery under Labor Law §240(1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240(1). However, in this case, an issue of fact exists as to whether the worker’s injury resulted from the lack of a statutorily prescribed protective device.”

In explaining why, in its opinion lower courts had been misinterpreting Misseritti, Judge Ciparick stated:

“In Narducci v. Manhasset Bay Assocs., (96 NY2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 [2001]), though we noted that section 240(1) applies to both ‘falling worker’ and ‘falling object’ cases, we declined to impose liability where a plaintiff was cut by a piece of glass that fell from a nearby window pane (id. at 267). We concluded that ‘[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected’ and that the absence of such a device ‘did not cause the falling glass here’ (id. at 268-269). Therefore, the accident was outside the scope of section 240(1) (see id.).

In Misseritti, we applied a similar rationale. The plaintiff’s decedent in that case sustained severe injuries, leading to his eventual death, when a completed concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, ‘decedent and his co-worker had just dismantled the scaffolding used to erect the completed firewall and . . .[m]asons had not yet vertically braced the wall with the . . . planks it had on the work site’ (id. at 491). We held that section 240(1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute (see id.). We determined that, in fact, the kind of braces referred to in section 240(1) are ‘those used to support elevated work sites not braces designed to shore up or lend support to a ‘completed structure’ (id.). Thus the firewall’s collapse, though tragic in consequences, was simply ‘the type of peril a construction worker usually encounters on the job site.’ (id.).
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Published on: February 19, 2012

Summary Judgment Granted For Construction Worker on 240(1) Claim for Injury in New York Construction Accident

By GGCRBHS&M

In Kempisty v 246 Spring St., LLC, 2012 NY Slip Op 00901, Decided on February 9, 2012, New York Appellate Division, First Department, The Court modified the decision of the lower Court dismissing the plaintiff’s 240(1) claim to the extent of reinstating the § 240(1) claim and granting plaintiff summary judgment.

The plaintiff alleged that he suffered a serious injury to his right foot when a steel block being hoisted by a crane improperly swung in his direction. He had been assigned the job of hooking blocks to the crane and acted as the signal man for the crane operator, Leonardo Marino. At his deposition, plaintiff testified that a second before the accident he was standing about two to three feet above the ground on a stack of blocks. Plaintiff further testified that the block that struck him had been vertically lifted about two feet before the accident occurred. Marino also testified that the block in question was vertically lifted about two to three feet. Plaintiff was standing two to three feet off the ground and the block was lifted off the ground approximately two feet when it began to swing. Hence the plaintiff and the block that struck him were at about the same height.

In granting summary judgment The Court held;

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Published on: July 11, 2010

In New York Construction Accident Court Holds Forklift a Mobile Crane Within Meaning Of Industrial Code

By GGCRBHS&M

In McCoy v. Metropolitan Transportation Authority, et al., The First Department held that a Gradall Forklift was a mobile crane within the meaning of the Industrial Code, 12 NYCRR 23-8.2 stating;

“The court correctly held, based on the evidence adduced at the framed-issue hearing, that the subject equipment was a mobile crane for purposes of the Industrial Code regulations governing the safe operation of mobile cranes, considering the manner in which the equipment was being used at the time of plaintiff’s injury. The term “mobile crane” is undefined in the Industrial Code, and plaintiff’s expert witnesses provided persuasive testimony that the Gradall was functioning as a mobile crane at the time of plaintiff’s accident, and that the Industrial Code provisions governing mobile cranes could sensibly be applied to the Gradall in light of the manner it was being used at the time (see Giordano v Forest City Ratner Cos., 43 AD3d 1106, 1108 [2007]; Millard v City of Ogdensburg, 300 AD2d 1088, 1089 [2002], lv denied 303 AD2d 1060 [2003]). Defendants’ expert testimony, in contrast, was unpersuasive and merely demonstrated that the Gradall was manufactured, tested, and sold in conformity with industry safety standards applicable to manufacturers governing rough terrain forklift trucks and lacked certain characteristics essential to a particular subset of mobile cranes, but ignored that there are [*2]several categories of mobile cranes not all of which possess these characteristics, that the Gradall is a multi-purpose machine capable of functioning as both a forklift and a mobile crane depending on the type of attachment being used, and that the Industrial Code was enacted before multi-purpose machines such as the Gradall were developed and therefore such machines were not within the contemplation of the drafters.”

View image 1997 Gradall Forklift.