New York Personal Injury Attorneys Blog

In a must read case The New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477, held that;

“Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [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.”

The Court went on to explain Misseritti;

In a 3-2 decision The New York Appellate Division, 3d Department, in GROVE v. CORNELL UNIVERSITY et al., 75 A.D.3d 718; 904 N.Y.S.2d 559; 2010, denied plaintiff’s motion for summary judgment on his 2401(1) claim while granting defendants’ cross motion dismissing the claim holding that plaintiff’s own negligent conduct was, as a matter of law, the sole proximate cause of his injuries. The facts as set forth by the majority were;

“Defendant Cornell University hired defendant Skanska USA Building, Inc. as the general contractor to construct a building on its campus. Skanska subcontracted the window work to Clayton B. Obersheimer, Inc., which employed plaintiff as a glazier. Plaintiff and a coworker, William Sobel, were performing work installing rubber membranes and metal flashing on the second story windows of the building. To reach the windows, plaintiff and Sobel utilized a mechanical telescoping boom lift, as they had done previously. Attached to the boom lift was a metal basket in which plaintiff, Sobel, their tools and materials were situated. Three of the four sides of the basket were enclosed by permanent metal rails. The fourth side was enclosed by a metal gate that opened into the basket to allow for ingress and egress of the workers. The gate was designed with a spring-loaded hinge so as to automatically swing the gate to a closed position when not in use. Plaintiff and Sobel were also provided with safety harnesses and lanyards that were to be attached to the basket to prevent them from falling out of the basket while it was in the raised position. Following a work break and the retrieval of additional materials, plaintiff and Sobel reentered the lift basket and plaintiff began operating the lift, raising it to the second floor. Sobel noticed that plaintiff had not attached the lanyard on his harness to the basket and reminded him to do so. Sobel then began work on a window and, within moments, turned around and saw that plaintiff was gone and the gate was in the open position. Plaintiff fell at least 30 feet, landed on a narrow slab of concrete below and suffered significant injuries”

The majority found that the fact that the spring-loaded hinge was not operating properly did not render the gate defective and that if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket. The dissent argued based on BLAKE and DUDA, that once a violation of 240(1) is shown a plaintiff’s conduct can’t be held as a matter of law to be the sole proximate cause of his accident, stating;

In a 3-2 decision The New York Appellate Division, 1st Department affirmed the granting of summary judgment to a construction worker on his 240(1) claim. In Reavely v.Yonkers Raceway Programs, Inc., et al., decided on October 20, 2011, the worker suffered injury while assisting in the installation of a hang wall at the edge of a building foundation. The pertinent facts as to the happening of the accident were set forth by The Court;

“Approximately 10 minutes before plaintiff approached the wall to make the cut, another contractor had finished installing waterproofing on the surface of the foundation where plaintiff would be doing the work. Plaintiff knew that it ordinarily takes at least 20 minutes for the waterproofing, which is a tar-like, viscous material, to dry. However, he was directed to make the cut immediately and did not want to defy his supervisor by waiting until he could be certain that the surface was safe. Plaintiff tested the material, and it appeared dry enough to stand on, so he commenced his work. As he was completing the cut, he attempted to replant his right foot and slipped on the viscous waterproofing. According to plaintiff’s affidavit submitted in connection with the subject summary judgment motions, “When I slipped I lost my balance. My body was pulled forward and I hovered over the uncovered 10 feet trench edge without fall protection. It was 10 feet deep there because that particular section had not been backfilled. I felt that I was about to go over the edge. I reacted immediately and instinctively to teetering by trying to stand up. I also desperately tried to counter the momentum pulling me over the edge by arching back. I knew that I was holding a potentially lethal saw which I was about to go over ]with, or even worse, on. Worried about hitting my leg as well and in the process of teetering and desperately trying to prevent myself from going fully over the trench edge, my right hand came off the operating saw and it struck my right hand, thumb and forefinger before it dropped.” Thus, according to plaintiff’s uncontested version of events, he did not actually sustain his injury by falling into the trench, but rather by attempting to prevent himself from falling.”

In rejecting the defendants’ attorney’s assertion that plaintiffs’ Labor Law § 240(1) claim should be dismissed because plaintiff did not fall from a height, and no object fell upon him from above it held;