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Does Labor Law � 240 apply where neither a worker nor an object falls? Although the statute itself, known as the scaffold law, does not speak of “falls” or “elevations,” the state Court of Appeals has long interpreted it to apply when a worker or object falls from a height differential. But there are recent cases that apply the statute even though the accident did not involve a fall at all. In 2001, the Court of Appeals held in Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 41, that “Labor Law �240(1) applies to both falling worker and falling object cases.” Moreover, Narducci stated that “[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law �240.” Before Narducci, the Court of Appeals held in Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 497, 601 N.Y.S.2d 49, 50 (1993), that a �240 claim by a welder was properly dismissed where he strained his back due to sitting at an awkward position which he argued would not have been necessary if an enumerated device had been provided. The Court stated that the statute was designed to prevent accidents in which the “protective device proved inadequate to shield the worker from harm directly flowing from the application of the force of gravity to an object or a person.” Before Ross, the Court of Appeals stated in Rocovich v. Consolidated Edison, 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 222 (1991), that “elevation differential alone is not enough to trigger the protection of Labor Law �240.” It dismissed the plaintiff’s �240 claim stating that “[w]hile the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk, it is difficult to imagine how plaintiff’s proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240(1).” Accordingly, Narducci, Ross and Rocovich seem consistent in requiring not only that a worker or object fall but also that falls be significant. Moreover, these decisions caution that not all falls are protected by the statute. However, in Fernandes v. Equitable Life Assurance Society of the United States, 4 A.D.3d 214, 774 N.Y.S.2d 4, decided on Feb. 19, 2004, the Appellate Division, First Department, held that �240 protected a plaintiff who did not fall at all but rather was injured when he lost his balance attempting to prevent himself from falling when a ladder that he was standing on wobbled. The court stated that “[i]t does not avail the defendants that plaintiff did not actually fall off the ladder but instead was injured in preventing himself from falling.” Similarly, in the Court of Claims case of Suware v. State of New York, 98015, Judge Alan. C. Marin found that �240 protected a plaintiff who spilled hot tar on his feet when a bucket he was raising to a roof tipped as it got caught on the edge of the roof. Judge Marin stated that the “claimant was trying to preserve his balance so he would not fall off the roof and/or drop the hot tar on the workers below; the result was that he spilled the tar on himself.” Does �240 then protect the close call or a near fall that causes the worker to lose his balance? If there is an actual fall requirement, then is there also a minimum height differential threshold? Narducci expressly recognized a minimum height requirement when it stated “[t]he exclusion made for the de minimus elevation differential in this case is appropriate.” Lower Court Rulings Not surprisingly though, the lower courts have taken varying approaches on height differentials of falling objects and falling workers in �240 cases and there is no bright-line rule as to what constitutes a de minimus fall. Indeed, the First Department stated in Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 756 N.Y.S.2d 530 (2003), that there is no “definitive height differential at which 240(1) begins to apply.” By eliminating any height differential threshold, the Thompson holding effectively also drops any requirement that a worker or object fall. Nonetheless, there are a plethora of cases that have dismissed plaintiffs’ �240 claims based on a miniscule height differential including a where the plaintiff stepped off a ladder onto debris, 1 where a bracket fell 16 inches onto the plaintiff 2 and where the plaintiff was injured during a 13-inch step down. 3 But falls involving similar height differences do not necessarily result in consistent case law. For example, in Gettys v. Port Authority, 248 A.D.2d 226, 670 N.Y.S.2d 28 (1st Dept. 1998), the court found �240 protected a plaintiff who fell 24 inches off a scaffold but it dismissed �240 where the plaintiff stepped into a 15- to 24-inch hole in a raised floor in D’Egidio v. Frontier Insurance Co., 270 A.D.2d 763, 704 N.Y.S.2d 750, (3d Dept. 2000) appeal denied 95 N.Y.2d 765, 716 N.Y.S.2d 640 (2000). Also, in Carpio v. Tishman Construction Corp. of New York, 240 A.D.2d 234, 658 N.Y.S.2d 919 (1st Dept. 1997), the court found that �240 protected a plaintiff who stepped three feet into a hole up to his groin. However, in Magnuson v. Syosset Community Hospital, 283 A.D.2d 404, 725 N.Y.S.2d 55 (2d Dept. 2001), the court dismissed �240 where the plaintiff, a worker fell into three-foot hole. Section 240 was similarly dismissed in Rissel v. Nornew Energy Supply Inc., 281 A.D.2d 880, 722 N.Y.S.2d 643 (4th Dept. 2001), where a pipe fell while being hoisted three feet off the ground and in Dilluvio v. City of New York, 264 A.D.2d 115, 704 N.Y.S.2d 550 (1st Dept. 2000) affirmed, 95 N.Y.2d 928, 721 N.Y.S.2d 603 (2000). where the plaintiff stepped off of a three-foot tailgate. Free Falls If a fall from a minimum height is required, is a free fall necessary? Again, there is no consistent answer. In Narducci, one of the two dismissed �240 claims before the court involved a plaintiff who was injured when a lighting fixture that he was installing in a ceiling slid, cutting his wrist and hand as he tried to stop it from falling onto him. There are numerous cases that dismiss �240 claims by plaintiffs who are injured when workers or objects slide down slopes but also other cases that grant judgment to plaintiffs making similar claims. 4 Shifting and tipping objects do not qualify as falling objects under �240. In Melo v. Con Edision of New York, Inc., 92 N.Y.2d 909, 680 N.Y.S.2d 47 (1998), the Court of Appeals dismissed a �240 claim where a steel plate resting on the roadway tipped onto the plaintiff and held that a tipping anchored object should not be considered a falling object. Similarly, �240 protection was found not to apply to a shift in a load where a coworker let go of 200-pound stone causing a pop in the plaintiff’s shoulder but plaintiff did not fall from the ladder that he standing on in Loiacono v. Lehrer McGovern Bovis Inc., 270 A.D.2d 464, 704 N.Y.S.2 658 (2d Dept. 2000). However, �240 was found to protect a plaintiff who shifted his weight and then fell from a ladder due to debris from the ceiling dropping into his eye in Bonanno v. Port Authority of New York and New Jersey, 298 A.D.2d 269, 750 N.Y.S.2d 1 (1st Dept. 2002). In addition, a shift in weight of a load of sheet rock that caused a worker to lose his balance and then fall from a ladder triggered �240 protection in Deng v. A.J. Contracting Company, Inc., 255 A.D.2d 202, 680 N.Y.S.2d 233 (1st Dept. 1998). Clearly, the plaintiff need not fall all the way to ground level to be afforded protection under the statute. For example, in Cordero v. Kaiser Organization Inc., 288 A.D.2d 424, 733 N.Y.S.2d 234 (1st Dept 2001), �240 was held to protect a plaintiff who fell between beams straddling roof rafters and in Becerra v. City of New York, 261 A.D.2d 188, 690 N.Y.S.2d 52 (1st Dept. 1999), the law was found to protected a fall through temporary flooring up to plaintiff’s shoulders. In addition, as was noted in an Outside Counsel column on Nov. 4, 2002, by Robert Vilensky, entitled “Does Labor Law Section 240(1) Apply to Falls Below Ground Level?”, with regard to falls from ground level, cases can be found that apply �2405 but other cases dismiss similar �240 claims. 6 Conclusion Under the laws described by Sir Isaac Newton, the force of gravity directly flows to every person and every object on the planet. But under the laws of New York state, are workers who lose their balance without falling sliding objects? Or are miniscule falls the type of elevation-related risks that should be afforded the exceptional protection of absolute liability afforded by �240? Falls Labor Law �240 may be an area ripe for the Court of Appeals to address. Maybe this fall. Julian D. Ehrlich is a member of the Law Offices of Alan I. Lamer in Elmsford, N.Y. Endn0tes: 1. Neives v. Five Boro Air Conditioning & Refrigeration, Inc., 92 N.Y.2d 914, 690 N.Y.S.2d 852 (1999). 2. Boyle v. 5 East 9th Street Owners Corporation, 250 A.D.2d 535, 673 N.Y.S.2d. 128 (1st Dept. 1998). 3. DeMayo v 1000 Northern of New York Co., 246 A.D.2d 498, 667 N.Y.S.2d 400 (2d Dept 1998). 4. Striegel v. Hillcrest Heights Development Corp., 100 N.Y.2d 974, 768 N.Y.2d 727 (2003) (�240 protects slide 15-20 feet down roof to eaves; slide down pitched roof ); D’Acunti v. New York City School Construction Authority, 300 A.D.2d 107, 751 N.Y.S.2d 459 (1st Dept. 2002) (�240 protected a plaintiff who slid 4 feet down a barrel roof); Mancini v. Pedra Construction, 293 A.D.2d 453, 740 N.Y.S.2d 387 (2d Dept. 2002) (�240 dismissed for worker who falls half way down trench, query as to whether this case was overruled by Striegel); Staples v. Town of Amherst, 146 A.D.2d 292, 540 N.Y.S.2d 926 (4th Dept 1996) (�240 dismissed for a trench collapse); Gielow v. Rosa Coplon Home, 251 A.D.2d 970, 674 N.Y.S.2d 551 (4th Dept. 1996) (�240 dismissed for a plaintiff who fell down a trench slope). 5. Congi v. Niagara Frontier Transportation Authority, 294 A.D.2d 830, 741 N.Y.S.2d 629 (4th Dept. 2002) (where the plaintiff fell 30 inches or 10 feet into trench); Trillo v City of New York, 262 A.D.2d 121, 691 N.Y.S.2d 515 (1st Dept. 1999) (where the plaintiff fell 8 feet into trench when sheeting failed); Bockmier v. Niagara Recylcing Inc., 265 A.D.2d 897, 696 N.Y.S.2d 605 (4th Dept. 1999) (where plaintiff jumped or stepped three or four feet into a 15 excavation, injured his knee then tumbled to the bottom of the excavation ); Klos v. New York City Transit Authority, 240 A.D.2d 635, 659 N.Y.S.2d 97 (2d Dept. 1997) (where the plaintiff fell through delivery opening in sidewalk). 6. Masullo v. City of New York, 253 A.D.2d 541, 677 N.Y.S.2d 162 (2d Dept. 1998) (where the plaintiff fell into uncovered manhole at pumping station); Sommerville v. Usdan, 255 A.D.2d 500, 683 N.Y.S.2d 268 (2d Dept. 1998) (where plaintiff tripped over iron rods then fall into excavation trench for fuel tanks); Giacomazzo v. Exxon Corporation, 185 A.D.2d 145, 555 N.Y.S.2d 944 (1st Dept. 1992) (where plaintiff fell into uncovered manhole then a gas pump falls off 4 foot hoist at ground level into the manhole and onto the plaintiff).

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