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Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Ladder Accidents

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using the wrong ladder can result in accidentInjuries and deaths resulting from ladder accidents are extremely common. According to the most recent CDC statistics, over the last decade, 81% of fall injuries treated in American ERs were resulting from falls from ladders. Ladders were also involved in 43% of all fall fatalities.  Thousands of people are injured and hundreds are dying every year in ladder accidents. Year after year, our construction accident attorneys are helping construction workers injured in ladder accidents getting compensated for their injuries. Most of the time, construction workers fall from ladders because they are not provided with the adequate ladders to perform the task. One of our recent clients was a carpenter who was standing on a 6-foot A-frame ladder while pinning studs above his head. The ladder that was provided to him was not proper for the work he was doing. As the carpenter was working, the ladder kicked out and the man fell. He suffered a spine injury and had to undergo a microdiscectomy to his lumbar spine. Our attorneys were able to obtain a $1.250 million settlement on his behalf.

In New York, the law requires that workers using ladders be provided with the adequate equipment to execute the task and that ladders are not defectively maintained, placed or operated. However despite that law, many negligent contractors continue to provide workers with inadequate, broken or old ladders that put them at risk of dangerous accidents.

Ladder accidents are not only common on construction sites but also at home. From changing a smoke alarm, to cleaning gutters, home owners also use ladders and get injured frequently.

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Falls are the leading cause of death in the construction industryThe Fourth National Safety Stand-Down to Prevent Falls in Construction kicked off Yesterday and will take place everyday this week in New York and all over the country. Employers in the construction industry are invited by OSHA, NIOSH and NORA to take a break and conduct a discussion or a workshop on fall prevention with their workers.

52 workers fatally fell on the job in New York during the recent construction boom. (see previous blog). Fall are the leading cause of death in the construction industry. They account for 37% of all deaths on construction sites. More than half of these fatal falls occurred in small companies that have 10 employees or less. Construction workers aged 45 to 54 years old are the most at risk of dying in a fall.

Last year in the US, 350 hard hats suffered a fatal fall. 1 out of 3 fefalling from ladders preventionll from 15 feet or less and 1 out of 4 fell from a ladder.  Construction workers may have a false sense of security when using a ladder because it is “not that high” but if they are not using them safely they can get killed. Falls from ladders can be prevented by following safe work practices described below.

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A construction worker suffered critical injury in a ladder accident in New York.  The accident happened on a construction site located on W. 17th Street near Sixth Ave in the Flatiron district in Manhattan. The hard hat was standing on a ladder, installing sheet rock on a ceiling frame when the accident happened. The worker who was not wearing a harness fell 50 feet down an elevator shaft and was impaled on steel rebar. The pieces of rebar pierced his abdomen, back, thigh, buttock and groin. Flagrant construction site safety violations are to blame for the accident. According to a primary investigation by the New York City Department of Buildings, the hard hat was not wearing a mandatory security harness. Adding to that, the elevator shaft wasn’t covered and there were no orange safety caps on the top of the rebar. This is the reason it is so important to fight against any changes in Section 240(1) of the New York State Labor Law which hold owners, general contractors and others liable for injures resulting from a lack of safety devices in height related accidents.

The construction site has a history of unsafe working conditions. The owner and developer, 34 17th Street Project LLC, was fined last August for “failure to maintain the building in a code complaint manner” and  unsafe or improper use of elevator or hoisting equipment at the same location. The violation indicated that the hoistway doors wer not secured “causing an immediate hazard that could cause someone to fall down the shaftway”.  In November nothing had changed and 34 17th Street Project LLC was fined for “failing to certify correction of an immediately hazardous violation”.

New Empire Builder Corp, the general contractor who is managing the site also has a history of violations. In 2014 OSHA inspectors responded to a complaint at 286 Spring Street, New York, NY. They found hard hats working in extremely unsafe conditions.  Some workers were standings on scaffolding resting on bricks. A worker was standing 10 feet above ground on a scaffold with no fall safety equipment while raising material on a pulley. Furthermore other workers were at risk of being electrocuted while using an ungrounded electric cement mixer. The contractor was fined  $19,600.

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Shulem Benyosef suffered fatal injuries after he fell from a ladder at a construction site in Brooklyn, NYC. the 44 year old man was married and the father of two children. He was working on a rooftop at 449 20th Street in Windsor Terrace in Brooklyn when the accident happened.  Shulem was standing on the ladder when he fell from at least 30 feet. Paramedics found him on the ground with serious head trauma. He was transported to the hospital where he later died from his injuries.

Read more in JP Updates and  the NY Daily News

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Personal injuries related to decorating such as falling from a ladder, lacerations and back strains are the most common decorating injuries reported by emergency departments during the months of November and December.

There are about 250 injuries a day during the holiday season according to the Consumer Product Safety Commission. Additionally, Christmas trees are responsible for an average 200 fires every year with additional deaths, injuries and property loss.

If you don’t want to be part of the statistics and spend the holidays with your family instead of the hospital, the Consumer Product Safety Commission just published a list of safety tips on Ladders, Trees and Decorations, Candles, Lights and Fireplaces that is worth the reading.

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A man died in an elevator accident last July at the 49ers stadium construction site but OSHA recently concluded that Schindler Elevator Corp., the elevator Construction Company and project’s general contractor, Turner/Devcon, a joint venture between Turner Construction Co. of New York and Devcon Construction Inc. of Milpitas didn’t merit sanctions.

The victim, Donald White, who was 63 year old, had worked all his life in the elevator construction trade. He was hit with an elevator counterweight while on a ladder at the bottom of the shaft at the 49ers stadium construction site in Santa Clara.

Just before the accident happened, White communicated with another co-worker who was operating the elevator and asked him to go up in the elevator to retrieve a tool. As the elevator started to move, for some unexplained reason, White stayed where he was, standing or or sitting on an A-frame ladder in the pit. Nobody witnessed the accident.

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In Rodriguez v DRLD Dev., Corp., 2013 NY Slip Op 05548, The New York Appellate Division, First Department reversed the lower Court’s granting of summary judgment on her Labor Law § 240(1) claim holding that “it cannot be determined, on the extant record, whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by Labor Law § 240(1).” The plaintiff while working on a construction project tripped on a metal cable, dislodging a pile of sheetrock boards, which stood approximately eight feet high and were leaning against a wall, not in use. Plaintiff attempted to stop boards from falling with her hands and head, but she could not support their weight, and suffered injuries. This case illustrates the importance for a plaintiff to set forth the type of safety device that would have prevented the accident. Had this proof been offered the plaintiff would in all probability have won the motion since the Court stated as follows;

“The Supreme Court correctly held that section 240(1) applies to this case even though the sheetrock that fell upon plaintiff was located on the same first-floor level as plaintiff (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]), and was not being hoisted or secured (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 98 AD3d 864, 865-866 [1st Dept 2012]). We find no inconsistency between plaintiff’s deposition testimony and her averment that at the time the sheetrock fell on her, it was leaning against the wall and resting atop blocks of wood approximately two feet high, a sufficient height differential to implicate § 240(1)’s protections (see Lelek v Verizon N.Y., Inc., 54 AD3d 583, 584 [1st Dept 2008]).” Fortunately, for the plaintiff the 240(1) claim was not dismissed.

Compare this to Hugo v Sarantakos, 2013 NY Slip Op 05512, Appellate Division, Second Department in which The Court dismissed the plaintiff’s 240(1) claim. According to The Court “…the plaintiff, while standing on the second-highest rung of a 24-foot extension ladder, which he owned and brought to the work site, lost his balance and fell to the ground, allegedly sustaining serious injuries. Prior to the accident, the ladder did not move or slip, and it remained in an upright position after the plaintiff fell off of it.” In dismissing The New York Labor Law Section 240(1) claim the Court opined;

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By Anthony Gair;

(A) THE RECALCITRANT WORKER DEFENSE
(1) A BRIEF HISTORY

In order to understand the break from precedent by the Court of Appeals in 2004, it is useful to understand the history of the recalcitrant worker defense. For years the leading recalcitrant worker case was Smith v. Hooker Chemicals and Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th dept. 1982); app. dismd. 58 N.Y.2d 824. The rule enunciated therein was that the “….the statutory protection (afforded by §240) does not extend to workers who have adequate and safe equipment available to them but refuse to use it.”

The facts in Smith are important in order to understand how the Court of Appeals in decisions between 2004 and 2009 expanded the reach of the recalcitrant worker defense by relying on cases such as Smith, while ignoring the facts upon which the holdings were based, thereby in effect failing to follow long established precedent.
For example, in Smith the plaintiff went up on a roof despite the fact that safety equipment had been removed and after a co-worker had refused to do so unless the safety equipment was put back in place.

The Court’s holding was thus based on the fact the plaintiff knowingly chose not to use safety devices which he knew had been in place and were readily available. His accident was also contemporaneous in time with his refusal to use the safety devices which his co-worker insisted be in place before the co-worker got on the roof.

The Court of Appeals followed the reasoning of Smith for years, as did numerous Appellate Division cases.

In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) the plaintiff was standing on a ladder leaning against a railroad car while using a hand-held sandblaster to clean the exterior of the car. He was injured when he fell from the ladder. In rejecting the defendant’s claim that the plaintiff was a recalcitrant worker, the Court stated:
“Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”
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In this video, New York injury lawyer Ben Rubinowitz demonstrates direct examination by plaintiff’s attorney of an adverse witness. In this example Chris Sallay plays the witness, Robert Hoover, a site foreman with experience in the construction industry.

For the fact pattern upon which this is based click on extended entry.
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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 [1995]. 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 [1995] 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 [2001]), 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.).
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