Brian J. Shoot

In a given year, there may be as many as 170 to 200 reported appellate decisions that involve application of Labor Law Sections 240, 241(6) and/or 200 to accidents alleged to have occurred during the course of a “construction” activity. Today, I look at two issues that have already been addressed several times in calendar year 2018.

The ‘Should Have Been Hoisted’ Object

The plaintiff and some number of co-workers were tasked with moving a 600-pound object up or down a flight of stairs. They should have been provided with a hoist—which is a listed device within the ambit of Labor Law § 240—but were instead directed to manually raise or lower the object. Alternatively, they were provided with some device that was plainly inadequate for the task.

Now, if the object falls and strikes the plaintiff in the course of being raised or lowered—which is essentially what occurred in Dirschneider v. Rolex Realty, 157 AD3d 538, 538 [1st Dept 2018]—we have an easy case and the plaintiff prevails under Labor Law § 240. Indeed, even if the plaintiff is not directly struck by the falling object but is instead pulled forward and thus sustains injury as an indirect consequence of the object’s fall, we still have an easy case because that was the precise fact pattern in Runner v. New York Stock Exchang., 13 NY3d 599, 604 [2009].

But what if the 600-pound object that should have been hoisted does not fall? What if the plaintiff instead sustains a back injury from the strain of carrying the object up or down the stairway? Is such an accident sufficiently “elevation-related” to come within the bounds of Labor Law § 240?

There is an arguably apt analogy. It is now familiar law that the injury comes within the ambit of Labor Law § 240 when plaintiff successfully averts a fall but sustains injury in doing so, e.g., Messina v. City of New York, 148 AD3d 493, 494 [1st Dept 2017]; Lopez-Dones v. 601 W. Assoc., LLC, 98 AD3d 476, 479 [2d Dept 2012]; Vislocky v. City of New York, 62 AD3d 785, 785–786 [2d Dept 2009]; Fladd v. Installed Building Products, 134 AD3d 1480, 1481 [4th Dept 2015]. This line of cases arises from the Court of Appeals’ decision in Striegel v. Hillcrest Heights Development, 100 NY2d 974, 978 [2003].

The ruling was the same in a case in which the worker was provided no means to travel from level A to level B and sustained injury in trying to lift himself to the higher level, see Triola v. City of New York, 62 AD3d 984, 985 [2d Dept 2009].

So what occurs when a worker who should have been provided a hoist sustains injury from the strain of lifting some object (not him or herself) from one level to a higher or lower level? Two recent decisions addressed that very issue … with inconsistent results.

In the Fourth Department case, Smiley v Allgaier Construction, 162 AD3d 1481 [4th Dept 2018], the plaintiff and a co-worker “were [manually] lifting a heavy motor approximately four feet onto the deck of a scissor lift.” They lost their grip and the plaintiff was “forc[ed] … to catch it from underneath to prevent it from falling to the floor.” The plaintiff felt pain in his left arm and, soon after, “a pop in his left shoulder.” The court ruled that the diametrically conflicting proof as to whether the worker had been provided with “adequate” protection precluded the grant of summary judgment to the plaintiffs. (The plaintiff’s coworker testified that he had performed work on 30 or 40 such doors and had manually lifted the motor onto a scissor lift every time, whereas the foreperson testified “that he had performed work on ‘over a thousand’ such doors,” that he had “never lifted a motor manually onto a scissor lift,” and that he “found it ‘hard to believe’ that hoists, blocks, pulleys, ropes, or other safety devices were not available on site.”)  However, the point for present purposes is that the incident itself was deemed within the scope of the statute.

The Second Department went the other way in Sullivan v. New York Athletic Club of City of New York, 162 AD3d 950 [2d Dept 2018]. In Sullivan, the plaintiff and a coworker had to carry “a heavy beam” “down a set of stairs.” The plaintiff “felt his ‘knee go forward’ as he neared the bottom of the steps with the beam on his shoulder.” The plaintiff alleged that he “sustained a left knee quadriceps tendon rupture” and the plaintiff’s medical expert attributed the injury to “‘the excessive load of the steel beam he was carrying on his body coupled with the activity of descending stairs.’” The Second Department deemed Labor Law § 240 inapplicable on two grounds: the accident occurred on a “permanent stairway” (a long story, beyond the bounds of this column), and, “the plaintiff was injured by the weight of the beam as opposed to an elevation-related risk.”  To the present point, the court stated: “[t]he mere fact that the plaintiff was injured by the weight of a heavy object being lifted or carried does not give rise to liability pursuant to Labor Law § 240(1).”

Was the accident in Smiley really more “elevation-related” than the accident in Sullivan? Should it matter whether the plaintiff tore a bicep lowering himself from one level to the next (as in Triola) as opposed to sustaining a left knee quadriceps tendon rupture from the strain of carrying an object down a permanent stairway (as in Sullivan)?

I suspect that reasonable attorneys and even jurists can, and will, disagree.

The Allegedly De Minimis Drop

How far is too far? When is the potential drop so minuscule as to be de minimis for the purposes of Labor Law § 240? Recent rulings remind us that the issue is not a matter of feet and inches but instead one of context.

Thus, in Makkieh v. Judlau Contracting, 162 AD3d 468 [1st Dept 2018], where a steel plate fell a distance of “two to three feet,” the court wrote that the “elevation differential cannot be viewed as de minimis, given the weight of the steel plate [one to two tons] and the amount of force it generated over the course of its relatively short descent.” The ruling was the same in Villanueva v. 114 Fifth Ave. Association, 162 AD3d 404 [1st Dept 2018] even though the 500-pound beam fell “half a foot onto the plaintiff’s shoulder.”

Decisions of this ilk, where the court emphasizes the weight of the falling object in considering whether the risk was de minimis, follow directly from the Court of Appeals’ decision in Runner, 13 NY3d at 605, where the Court of Appeals ruled that the four-step drop was not de minimis, “particularly given the weight of the object [800 pounds] and the amount of force it was capable of generating …”

By contrast, where the accident occurred in the course of unloading or alighting from a vehicle, the case will often end differently, at least in the absence of any distinguishing circumstances (e.g., Idona v Manhattan Plaza, 147 AD3d 636, 636 [1st Dept 2017] [wherein the plaintiff fell not from the surface of the flatbed truck but from atop scaffolding materials that were “about 10 feet above the ground”]).

Thus, in Sawczyszyn v. New York University, 158 AD3d 510, 511 [1st Dept 2018], where the plaintiff “was allegedly injured in the course of rolling a four-wheeled cart filled with about 100 to 200 pounds of materials over an unsecured, makeshift plywood ramp which bridged an approximately five- or six-inch gap between a truck bed to a loading dock,” the court ruled that the plaintiff was not injured by an elevation risk within the scope of the statute. Similarly, in Salerno v. Diocese of Buffalo, 161 AD3d 1522 [4th Dept 2018], where the plaintiff had been operating a Bobcat skid-loader and the machine’s safety bar “allegedly fell and struck him,” the court ruled that the “plaintiff was not injured as the result of any ‘physically significant elevation differential.’”

These “vehicle” rulings arise in part from the Court of Appeals’ decisions in Bond v. York Hunter Construction, 95 NY2d 883 [2000] (alighting from vehicle) and Toefer v. Long Island Railroad, 4 NY3d 399 [2005] (unloading vehicle).

In other factual contexts, where the plaintiff was injured while descending from a higher-level roof to a lower-level roof, the Second Department held that “the three-foot-height differential between the two levels of the roof did not present the sort of elevation-related risk protected by that statute,” see Pita v. Roosevelt Union Free School District, 156 AD3d 833, 834–835 [2d Dept 2017].

More recently, in Jackson v. Hunter Roberts Construction Group,161 AD3d 666 [1st Dept 2018], wherein the plaintiff “and a coworker were carrying a water main pipe when he lost his balance upon stepping on a makeshift ramp that ‘bowed,’” the First Department said that “[t]he height differential of six to 10 inches mediated by the ramp did not constitute a physically significant elevation differential covered by the statute.”

However, in Brown v 44 St. Development, 137 AD3d 703, 704 [1st Dept 2016], wherein the plaintiff “fell through an opening in a latticework rebar deck to a plywood form that was 12 to 18 inches below,” the different context produced a different result, with the court ruling “‘[t]here is no bright-line minimum height differential that determines whether an elevation hazards exists’” and “the record establishes that plaintiff’s fall was the result of exposure to an elevation related hazard.”

The bottom line: while the length of the actual or potential drop is pertinent in determining whether the elevation-related hazard was de minimis, resolution of the issue turns on the factual context and other circumstances.

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McGrath & Cannavo. He is a member of the advisory committee on civil practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers.