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;
“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.”
This case illustrates the importance of The Court of Appeals rejection of the same level rule in Wilinski in New York construction accidents. Decided on October 25, 2011, Wilinski has to date been cited 12 times.
See for example, Dipalma v. State of New York, 936 N.Y.S.2d 464 (4th Dept. 2011) in which the claimant suffered injury when a large skid box fell off of a forklift one or two feet striking the claimant. Following the liability portion of a bifurcated trial the Court of Claims determined that defendant, the property owner, was liable for claimant’s injuries pursuant to Labor Law § 240 (1) and §241(6). In affirming with regard to the 240(1) claim The Court held;
“Defendant further contends that Labor Law § 240 (1) is inapplicable because there was no significant height differential between the skid box and the platform onto which it fell, where claimant was working at the time of the accident. We reject that contention. The “core premise” of our Labor Law § 240 (1) jurisprudence is “that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability” (Wilinski v 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 4). Here, similar to the plaintiff in Wilinski, claimant “suffered harm that ‘flow[ed] directly from the application of the force of gravity’ ” to the object that struck him (id.). Moreover, “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 599, 603), and the experts who testified on behalf of both parties agreed that the failure to use a protective device to secure the skid box to the forklift was improper. Although the skid box fell only one or two feet before it struck claimant, in light of the weight of the skid box and its contents, as well as the potential harm that it could cause, it cannot be said that the elevation differential was deminimis (see id. at 605).”