New York Construction Accident Law: ELEVATION RELATED DIFFERENTIALS AND THE REJECTION OF THE SAME LEVEL RULE
By Anthony H. Gair;
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 . 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  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 ), 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.).
"Intermediate appellate courts have cited Misseritti as support for the proposition that a plaintiff injured by a falling object has no claim under section 240(1) where the plaintiff and the base of the object stood on the same level (see e.g. Brink v. Yeshiva Univ., 259 AD2d 265, 686 N.Y.S.2d 15 [1st Dept 1999] [citing Misseritti and holding that the collapse of an interior chimney at the same floor level as plaintiff was not attributable to elevation differentials to warrant the imposition of liability]; Matter of Sabovic v. State of New York, 229 AD2d 586, 587, 645 N.Y.S.2d 860 [2d Dept 1996] [“the wall which collapsed was at the same level as the work site and is not considered a falling object for purposes of labor law 240 §(1)’]; Corsaro v. Mt. Calvary Cemetery, 214 AD2d 950, 950, 626 N.Y.S.2d 634 [4th Dept. 1995] [holding that a concrete form standing at ground level and estimated between 12 and 20 feet high was not a falling object because it was at the same level as the work site and not an elevation related risk]). Here, the Appellate Division also relied on Misseritti in holding that the collapse of the pipes, like the collapse of a wall, was not an elevation related accident and stated that ‘[s]ince both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability’ under section 240(1) (Wilinski, 71 AD3d at 539 [internal quotation marks omitted]). Defendants urge the Court to endorse the ‘same level’ rule now by affirming the lower court’s dismissal of plaintiff’s section 240(1) claim.
We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability (see Misseritti, 86 NY2d at 490-491; Narducci, 96 NY2d at 268-269). Thus, we decline to adopt the ‘same level’ rule, which ignores the nuances of an appropriate section 240 (1) analysis.”
The Court then went on to explain that the same level rule was inconsistent with its most recent decisions:
"Moreover, the so-called “same level” rule is inconsistent with this Court’s more recent decisions, names Quattrocchi v. F.J. Sciame Constr. Corp. (11 NY3d 757, 896 N.E.2d 75, 866 N.Y.S.2d 592 ) and Runner v. New York Stock Exch., Inc., (13 NY3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 ), neither of which are cited by the dissent. In Quattrocchi, we articulated for the first time that liability is not limited to cases in which the falling object was in the process of being hoisted or secured (see 11 NY3d at 759). Next, in Runner, the Court had occasion to apply section 240 (1) to novel factual circumstances that did not involve a falling worker or falling object (see 13 NY3d at 605). In Runner, the plaintiff was injured while he and coworkers moved an 800 pound reel of wire down a flight of four stairs (see id. At 602). The workers were instructed to tie one end of a 10 foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel (see id.). The plaintiff, acting as a counterweight, held the loose end as other workers pushed the reel down stairs (see id.). As the reel descended, the plaintiff was pulled horizontally into the bar, injuring his hands as they jammed against it (see id.). After a review of our precedents, we concluded that:
“the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, 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’ (id. At 603 [emphasis added]).
As the ‘elevation differential [could not] be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent’ (id. at 605), we held the defendants liable under Labor Law §240(1) for using a ‘jerry-rigged device’ rather than hoists or pulleys as provided under the statute (see id. At 602, 605)."
Writing for the dissent, Judge Pigott, joined by Judges Graffeo & Read, opined that Misseritti was indeed controlling since there was no elevation related differential or an enumerated safety device that would have prevented plaintiff’s injuries. Since the base of the pipe was at the same level as plaintiff, the falling beams were no different than the wall in Misseritti.
Wilinski has already been cited more than 45 times. Following are some of the 2012 decisions relying on Wilinski;
Kempisty v. 246 Spring St., LLC, 92 A.D.3d 474, 938 N.Y.S.2d 288 (1st Dept. 2012).
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 stuck him were at about the same height.
In granting summary judgment to the plaintiff the Court held:
“The motion court erred in finding that Labor Law §240(1) does not apply in this case because there was no appreciable height differential between plaintiff and the object being hoisted, a four-ton steel block, that crushed plaintiff’s foot. The elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance (see Runner v. New York Stock Exch., Inc., 13 NY3d 599 ; see also Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 ).
Having concluded that §240(1) applies, the question is whether or not defendants established the existence of an issue of fact sufficient to deny plaintiff summary judgment. They have not. Plaintiff established that the accident was proximately caused by the application of the force of gravity to the block. Plaintiff’s expert asserts the block was not properly secured, through the use of tag lines or other safety devices, to prevent it from moving while being hoisted.
In opposition, defendants’ expert merely attempts to shift proximate cause of the accident to plaintiff for walking in the path of the block, and he states, in conclusory fashion, that tag lines were not required to be used during the load test. This does not sufficiently challenge the conclusions of plaintiff’s expert that the accident was the direct result of the application of gravity to the block.”
Kropp v. Town of Shandaken, 91 A.D.3d 1087, 937 N.Y.S.2, 345 (3rd Dept. 2012).
The facts set forth by the Court were that plaintiff was injured while working in a trench between four to eight feet deep was struck by an 18 foot long iron pipe, 18 inches in diameter which had been attached to another section of pipe making a total weight of 1,500 pounds. The pipe was being lowered into the trench by an excavator being operated by plaintiff’s supervisor. The Court reversed the granting of plaintiff’s motion for summary judgment holding there were conflicting witness accounts regarding the happening of the accident.
What is interesting about the case is that Court citing Wilinski, opined that even if the pipe dropped only one foot before it struck plaintiff “...such an elevation cannot be viewed as di minimis , particularly given the weight of the object and the amount of force it was capable of generating.”
The Court also, citing Runner held “...the dispositive inquiry is not merely how far the pipe fell but whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection from a risk arising from a physically significant elevation related differential.”
McCallister v. 200 Park, L.P., 92 A.D. 3d 927, 939 N.Y.S.2d 538 (2nd Dept. 2012).
The Court granted the motion by the plaintiff for summary judgment on his 240(1) claim despite the fact that the base of a scaffold which fell and struck him was at the same level as the worker.
This case is, again, part of the trend following Wilinski. In McCallister the plaintiff and co-workers were moving four stacked scaffolds which were placed on a Baker scaffold. The total weight of the four stacked scaffolds was about 450 to 550 pounds. As they were moving the Baker scaffold the right front and then the left front wheel broke off. The plaintiff squatted down with the bars of the scaffold on his chest in order to pick up the wheelless end of the scaffold. Rather than moving it to the side as the plaintiff expected, the foreman pushed the scaffold towards him. The scaffold fell forward onto the plaintiff’s chest, allegedly pinning him against the wall and injuring his spine. As demonstrated by this case, the Courts have been focusing on weight of the device and its load, and the force it was able to generate over its descent. In granting the motion the Court stated:
“Although the base of the scaffold was at the same level as the plaintiff and the scaffold only fell a short distance, given the combined weight of the device and its load, and the force it was able to generate over its descent, this difference was not de minimis (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10; Runner v. New York Stock Exch., Inc., 13 NY3d 599, 605; DiPalma v. State of New York, 90 AD3d 1659; Pritchard v. Tully Constr. Co., Inc., 82 AD3d 730, 730-731; Gutman v. City of New York, 78 AD3d 886, 886-887). Thus, the plaintiff suffered harm that ‘flow[ed] directly from the application of the force of gravity to the [broken scaffold]’ (Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10, quoting Runner v. New York Stock Exch., Inc., 13 NY3d at 6.”
Ortega v. City of New York, 95 AD3d 125, 940 N.Y.S.2d 636 (1st Dept. 2012).
Once again the Court relying on Wilinski and Runner granted the plaintiff summary judgment. Plaintiff was injured while connecting pipes on the Second Avenue Subway Tunnel Construction Project. The plaintiff had to stand on a work platform (known as a tremie rack) located eight feet above the ground. The platform was contained within a metal case, which was a rectangular structure about twelve feet high. Plaintiff was ejected from the platform when a pipe that was being hoisted by a multi-ton rig got caught on a device known as a keeper which was used to keep extra pipes in place causing the tremie rack to tip over on its side.
The case is of particular interest for its brief discussion of the “foreseeability requirement” which the Court addressed as follows:
“Thus contrary to the IAS Court, expert testimony on foreseeability was unnecessary for plaintiffs to prevail on the §240(1) claim. To be sure, this Court has created a limited exception with respect to foreseeability where the accident involves the collapse of a permanent structure (see Jones v. 414 Equities LLC, 57 AD3d 65, 866 N.Y.S.2d 165  [demolition worker fell when a permanent second story floor collapsed]; Espinosa v. Azure Holdings II, LP, 58 AD3d 287, 869 N.Y.S.2d 395  [plaintiff fell when the sidewalk on which he was standing collapsed due to the failure of the cellar vault below it]; Vasquez v. Urbahn Assoc. Inc., 79 AD3d 493, 918 N.Y.S.2d 1  [plaintiff fell when permanent staircase collapsed during demolition of a building]). But, that is not the case here.
Notwithstanding the clear holdings in cases such as Wilinski, Gordon and Runner, defendants in the present case are seeking to expand the limited foreseeability requirement beyond the confines of permanent structures such as those Jones, Espinosa and Vasquez dealt with (see Vasquez, 79 AD3d at 498, where I noted in dissent that by reading a foreseeability requirement into the statute, contractors would be encouraged ‘to take a head-in-the-sand approach to their statutory obligations, ‘ which is exactly what defendants are doing in the present case). We thus decline to extend the foreseeability requirement to anything other than permanent structures that are not safety devices by their nature.”
NOTE: Judge Roman’s concurrence and dissent in Fabrizi v. 1095 Ave. of the Americas, LLC, 2012 N.Y. Slip Op. 06182 (1st Dept. 2012) while recognizing the holding in Ortega, limiting the foreseeability requirement to the collapse of permanent structures, stated “nevertheless, even when not specifically mentioned, in a great number of cases, in particular those cases that premise Labor Law §240(1) on the existence of a gravity related risk or hazard , foreseeability has been despositive and has been necessarily implied.”
SEE ALSO: Mclean v. 405 Webster Avenue Associates, et. al., 2012 NY Slip Op 6286 (2nd Dept. September 26, 2012), in which the Court affirmed the granting of summary judgment dismissing plaintiff’s §240(1) claim. The facts are set out in detail in the decision of the lower Court at 2010 NY Slip Op 51396u. The plaintiff and co-workers were installing microduct in an apartment building. At the time of the accident the plaintiff and co-workers were attempting to run microduct up a dumbwaiter cart in the basement inside the shaft in order to feed the microduct up to his co-worker, when what turned out to be a dumbwaiter counterweight, fell down the shaft striking him.
The Court citing Broggy, rejected the plaintiff’s claim that he was required to work at an elevation in order to do his work and thus subjected to an elevation related risk. The lower Court noted that plaintiff testified that he stood on the cart because it was in his way not because he required the extra elevation it provided. With respect to the “falling object” claim, the Court rejected it as well since “....it was not the nature of the work that caused an object to fall on plaintiff. Rather it was the defective condition of the ropes in the shaft. Where a falling object is not a foreseeable risk inherent in the work, no protective device...is required....”
In Mclean, nothing was being hoisted or needed to be secured, the dumbwaiter counterweight was part of the permanent structure of the building and it was completely unrelated to the work being performed.
DeRosa v. Bovis Lend Lease, LMB, Inc., et. al., 96 A.D.3d 652, 947 N.Y.S.2d 472 (1st Dept. 2012).
The plaintiff, a driver of a cement-mixing truck was required because of the manner in which the truck was positioned to mount the rear fender, which was approximately three feet off the ground. He knelt down to reach around to the rear side of the truck to activate a water-mixing valve. When he began to stand and lift his leg to ascend the truck’s unextended ladder, the back of his shirt became caught in the mixer’s rotating handle causing him to be propelled upward and over to the other side of the truck. The Court dismissed the §240(1) claim since “...plaintiff was not exposed to an elevation related risk and his injury did not directly flow from gravity’s force.”
The Court distinguished both Runner and Wilinski since in those cases “...the plaintiff’s injury was the direct result of the failure to provide safety devices of the type enumerated in the statute. The plaintiff, the Court stated, testified his work did not require him to be provided with any safety equipment from the owner or general contractor.
Dissenting, Judge Renwick, opined that summary judgment should have been granted to plaintiff:
“As in Runner and Wilinski, this case contains the necessary conditions for the The truck was equipped with a ladder, located on the rear of the driver’s side of the truck, for this task.”applicability of section 240(1), i.e., an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against. Plaintiff’s job required him to complete the mixing of the concrete at the site itself. He performed this task by operating a water valve switch that was located on the rear of the driver’s side of his truck. Plaintiff was also required to climb to the top of the truck so that he could visually assess whether the consistency of the mix was appropriate for the specification of the job."
Oakes v. Wal-Mart Real Estate Business Trust, et. al., ____ AD3d _____, 948 N.Y.S.2nd 748 (3rd Dept. 2012).
The plaintiff was walking between two steel trusses (girders) which were 30 feet long by 5-1/2 feet high by 1 foot wide. The trusses were standing upright waiting to be installed. A forklift driven by a co-worker carrying an unsecured bar joist drove over a soft spot in the ground causing its right tire to sink 6 to 8 inches causing the unsecured bar joist to shift and strike one of the vertically positioned trusses which fell over onto the plaintiff.
In dismissing the §240(1) claim the Court held, despite the weight of the truss and the significant force generated when it fell, there was no elevation related differential. The truss and plaintiff, the Court stated were both at ground level and were either approximately the same height or plaintiff was slightly taller than the truss.
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