New York Personal Injury Attorneys BlogNEW YORK CONSTRUCTION ACCIDENT LAW- THE SAME LEVEL RULE-GOING, GOING, GONE?
In McCallister v 200 Park, L.P., 2012 NY Slip Op 01595, decided 2/28/12 The Appellate Division, Second Department, granted the motion by the plaintiff construction worker 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 part of a trend following The Court of Appeals decision in Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 rejecting the same level rule. 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 the 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.”
