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New York Construction Accident Law: Gasques v. State of New York,What Does It Stand For?

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 [2009]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]). 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.

Thus in order to understand the decision in Gasques, one must understand the decision in Runner. In Runner, the Court stated as follows:

“Rather, 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.”

“It is plain that a device precisely of the sort enumerated by the statute was not ‘placed and operated as to give proper protection’ to plaintiff, a person employed in the alteration of a building and thus within the statute’s stated protective ambit. The breadth of the statute’s protection has, however, been construed to be less wide than its text would indicate. As is here relevant, it is generally agreed that the purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction worksite elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk (see Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 [1991].”

The Court went on to state:

“The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent. And, the causal connection between the object’s inadequately regulated descent and plaintiff’s injury was, as noted, unmediated – or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope’s opposite end. It is in this respect that this case differs from Toefer v. Long Is. R.R. (4 NY3d 399 [2005]), upon which defendants rely. There, the injury was the result of a concatenation of circumstances resulting in the “inexplicable” launch of an object – not a falling object – in plaintiff’s direction (id. At 408); it was not, as here, the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.”

Gasques has only been cited once to date. In Panico v. General Elec. Co., 2011 N.Y. Misc. LEXIS 413, 2011 NY Slip Op 30379U (N.Y. Sup. Ct. Feb. 10, 2011) in which the Court relied on the decision stating;

“In any event, however, defendants Delphi and Will-Work made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff’s Labor Law § 240 (1) claim by demonstrating that plaintiff’s injury, “while tangentially related to the effects of gravity, was not caused by the limited type of elevation-related hazards encompassed by the statute” (Gasques v State of New York, 59 AD3d 666, 667, 873 N.Y.S.2d 717 [2d Dept 2009], affd 15 N.Y.3d 869, 937 N.E.2d 79, 910 N.Y.S.2d 415 [2010] [injuries of worker, whose hand was crushed between the motor control of a scaffold and the steel of a bridge when he stopped a scaffold while ascending a tower of the bridge, was not the direct consequence of the application of the force of gravity to an object or person, and thus, not considered the limited type of elevation-related hazard encompassed by Labor Law § 240 (1)]).”

Thus as long as an elevation related differential is involved it is submitted that it is of no consequence whether a specifically enumerated 240(1) device is motorized. A contrary analysis would effectively remove specifically enumerated devices such as hoists from the protection of The Statute.

The Court of Appeals holding in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991) leaves no doubt but that Section 240 is applicable where a worker is injured as a result of the negligent operation of a hoist:

“Section 240(1) of the Labor Law, entitled, ‘Scaffolding and other devices for use of employees’ requires that all contractors and owners ‘In the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated, as to give proper protection to a person so employed (emphasis added). The legislative purpose behind this enactment is to protect workers by placing “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407), instead of on workers, who “are scarcely in a position to protect themselves from accident” (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898).”

We will have to wait for further direction from The Court of Appeals as to whether 240(1)liability lies if a device is going up. One would think that to Isaac Newton it would make no difference.

The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury in construction accidents in New York.