By Anthony H. Gair
In Gasques v. State of New York, 15 N.Y.3d 869, 910 N.Y.S.2d 415 (Ct. Apps. 2010), , a two paragraph decision with regard to Section 240(1) the Court stated as follows:
“Claimant Wanderlei Gasques was injured while repainting the inside of a leg of the Kosciuszko Bridge, using a ‘spider scaffold.’ His hand was injured when it became caught between the scaffold and the leg of the bridge, while the scaffold was ascending.
With respect to claimants’ Labor Law §240(1) cause of action, the parties agree that Gasques’s hand was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge. This injury was not the direct consequence of the application of the force of gravity to an object or person (see Runner v. New York Stock Exch., Inc., 13 NY3d 599, 604, 922 N.E.2d 865, 895 N.Y.S.2d 279 ; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501, 618 N.E.2d 82, 601 N.Y.S.2d 49 ). Therefore claimants’ Labor Law §240(1) claim was properly dismissed.”
On first reading this decision one might conclude that in future cases a defendant might argue that there is no Section 240(1) liability if;
1. A motorized hoist or scaffold is involved.
2. Gravity is not involved if the hoist or scaffold is going up.
3. No 240(1) liability because no elevation related differential.
If one watches the oral argument on The New York Court of Appeals web site one could reasonably conclude that the basis of the decision was that the scaffold was going up since The Justices asked numerous questions as to how gravity could be involved since the scaffold was going up.
It is submitted that the basis for the Court’s decision had nothing to do with the scaffold being motorized or the fact that it was going up but the fact that there was no elevation related differential involved. This seems clear since the Court cited Runner v. New York Stock Exchange, supra.
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