In Salazar v.Novalex Contracting Corp., et al., decided on November 21, 2011, The New York Court of Appeals in a 4-3 decision granted defendants’ motion for summary judgment dismissing a construction worker’s 240(1) claim. The plaintiff suffered injury while working in the basement of a building undergoing renovation. The facts of the accident as set forth by Judge Pigott, writing for the majority were in pertinent part, as follows;
“The accident occurred in the largest room of the basement, which had a trench system,for piping. Salazar and the other workmen were laying a concrete floor. They were directed to pour and spread concrete over the entire basement floor, including the trenches. Before he began work on the day he was injured, Salazar looked for, and visuallylocated, the trenches.
The concrete flowed from a truck into wheelbarrows placed in the basement, via a chute fed through a window. Workmen poured the wet concrete from the wheelbarrows onto the floor of the basement, where Salazar and others “pulled” the concrete with rakes, ensuring that the floor would be level. As Salazar explained the next stage of the process at his deposition, the trench system fills with concrete “by itself because the concrete runs and it fills it out . . . the concrete kind of slides down or runs down” into the trenches. Salazar was injured after he stepped into a trench that was partially filled with concrete. He had been walking backwards across the floor, “pulling” concrete with a rake held in front of him, and looking forward, rather than in his direction of motion. As Salazar recalled the incident, “one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards, . . . my foot got inside, into that hole.” After Salazar’s right foot hit the bottom of the trench, his right leg folded beneath him. Before being assisted out of the trench by his coworkers, Salazar tried to pull his leg out “on my own, myself, and that’s how I hurt myself.”
According to Salazar, the portion of the trench system into which he stepped was about 2 feet wide and “[b]etween 3 and 4 feet deep.” There was no railing, barricade, or cover around or over the trench.”
There is obviously a philosophical battle going on at The Court with Judge Pigott leading the faction which would read 240(1) restrictively and Judge Lippman the faction that would read it liberally. The difference is clearly enunciated in Judge Lippmann’s dissent. In any event in support of the majority opinion Judge Pigott relied upon the most recent 240(1) decision by the Court in which he authored the dissent;
“In Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (__ NY3d ___ [Oct. 25, 2011]), the plaintiff was injured when a nearby wall that was being demolished fell into two 10-foot-high unsecured metal pipes, causing them to topple onto him. This Court denied summary judgment to both parties, holding that an issue of fact existed as to whether the worker’s injury resulted from the absence of a safety device statutorily prescribed under Labor Law § 240 (1). In doing so, the Court contrasted the facts of Wilinski with other cases in which summary judgment dismissing the complaint would have been warranted:
Here, the pipes that caused plaintiff’s injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell. In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan
Here, the installation of a protective device of the kind that Salazar posits – assuming that such a device, although not listed in Labor Law 240 (1), was an “other device” within the meaning of the statute – would have been contrary to the objectives of the work plan in the basement. Salazar testified that he was directed to pour and spread concrete over the entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete. Moreover, the record is clear that the purpose of the work here was to lay concrete over the entire basement. Since the liquid concrete would necessarily fill the trench and pour out over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread, particularly since the settling of concrete requires that the work of leveling be done with celerity. Given that Labor Law § 240 (1) should be construed with a common sense approach to the realities of the workplace at issue, defendants are entitled to summary judgment dismissing that claim.”
In a Strongly worded dissent Judge Lippman, joined by Judges Ciparick and Jones, both of whom had been in the majority in Wilinski together with Judge Smith who was the swing vote in this case opined, inter alia;
” The majority misapplies this Court’s recent holding in Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (__NY3d ___ [Oct. 25, 2011]), and errs by viewing the evidence in the light most favorable to defendants, rather than in the light most favorable to plaintiff, on defendants’ motions for summary judgment. Therefore, I respectfully dissent.
The majority endeavors to create exceptions to Labor Law § 240 (1) that should not exist and to narrow arbitrarily the scope of the statute in concluding that it does not apply to this case in which an elevation-related risk was clearly present and the accident, which was caused by the force of gravity acting on the body of plaintiff, could have been prevented by the simple placement of a cover over the trench or a barrier around its perimeter. Contrary to the position taken by the majority, this is precisely the type of case to which Section 240 (1) was intended to apply.”
” In Runner v New York Stock Exch., Inc. (13 NY3d 599, 603 ), we held 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” and that test is certainly met in this case. In Rocovich v Consolidated Edison Co. (78 NY2d 509 ), we clarified that “extent of the elevation differential” (here, measured by the depth of the trench) is not necessarily dispositive (id. at 514) and on this basis I conclude that based on plaintiff’s deposition testimony as to the depth of the trench (which we must take as true for purposes of deciding defendants’ motions for summary judgment), there was a significant elevation differential in this case. It is undisputed that no safety device was provided to plaintiff.”