Notwithstanding the dearth of Court of Appeals Labor Law §240 decisions on falling objects in the last several years, the law has been the subject of much discussion of late, mainly in the form of a flurry of articles on reform efforts appearing in the New York Law Journal and other news sources.
Despite these reform efforts, the statute has not been repealed or amended. It is therefore a good time to examine the latest trend in some New York courts in falling object cases.
This trend moves the focus of §240 from falls to forces.
The analysis has changed the triggers that were the hallmark of the law’s application in falling objects cases such as substantial height differentials, hoisting or securing operations and failures of enumerated safety devices, toward a much broader, vaguer standard.
Now, if the weight of an object and the “force” it is capable of generating in its movement is “significant,” then the fact that the object was just a few inches above the ground or even at the same level of the injured plaintiff is irrelevant and the height differential not de minimis as a matter of law.
The Near Past
A brief look back into recent history underscores how far the trending courts have come and how fast they have discarded long-standing fall analysis.
Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267 (2001), was a high water mark for the Court of Appeals’ application of §240 wherein the court stated that the law “applies to both ‘falling worker’ and ‘falling object’ cases.” However, the court was careful to stress 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(1).” Id. at 268.
In dismissing Narducci’s §240 claim, the court reasoned that “[f]or falling objects, a plaintiff must show that the object fell while being hoisted or secured because of the absence or inadequacy of a safety device of the kind enumerated in the statute.” Id.
Accordingly, the scope of the statute was defined, at least to some extent, by the hoisting and securing devices specifically referenced in the body of the law.
Significantly, the Narducci court made express reference to “the exclusion made for the de minimis elevation differential” and found the exclusion “appropriate” because “there was no height differential between the plaintiff and the falling object.” Id. at 269.
Moreover, the characterization of de minimis as an exclusion was consistent with long-standing Court of Appeals decisions that dismissed §240 claims based on small height differentials1 although the court never actually created a bright-line test for the minimal distance needed to trigger the statute’s protections.2
The Narducci court also explicitly rejected an approach that relied exclusively on the application of gravity to the object stating that “[t]he fact that gravity worked upon this object which caused plaintiff’s injury is insufficient to support a section 240 claim.” Id. at 270. This may have reflected an appreciation that gravity works universally on all workers and objects and thus, a standard based on the operation of gravity alone does not provide real guidance.
However, the approach set forth in Narducci has been attacked relentlessly by subsequent decisions. Indeed, the Narducci analysis has now effectively been replaced, at least in the First Department, with a new approach that de-emphasizes height and essentially dispenses with the de minimis exclusion as long as the force generated during the object’s movement can be said to have been significant.
Origins of Changes
The seeds of change were planted in Runner v. New York Stock Exch., 13 N.Y.3d 599 (2009). There, the Court of Appeals applied §240 to a claim involving neither a falling worker nor a falling object striking a worker. Rather, the court held that neither of “these familiar scenarios” exhaustively defined the statute’s reach. Id. at 604.
Moreover, the court returned gravity as central to the analysis and rejected the idea that the list of the enumerated devices was inclusive.
Specifically, the court stated that §240 applicability “does not depend on the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Id. at 603. Instead, liability depends on “whether harm flows directly from the application to the force of gravity to the object.” Id.
The claim in Runner involved an attempt to lower an 800-pound reel of wire down four steps using rope tied at one end to the reel and at the other end, wrapped around a metal bar placed horizontally across the door jam at the top of the stairs. When the workers could not control the descent of the reel, Runner, hand holding on to the rope, got pulled into the bar causing injury.
In considering the de minimis arguments made by the defendants, the court factored in the horizontal force on the rope created by the weight of the reel. “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 the relatively short descent.” Id. at 605.
Because the “device,” the rope used as a hoist, failed to protect the plaintiff, §240 applied.
Since the object in Runner never left the ground and never actually struck the plaintiff, the court’s decision essentially leveled its earlier admonition in Narducci that “[w]hile many workplace accidents…could be classified as ‘gravity-related’ occurrences stemming from improperly hoisted or inadequately secured objects, courts may nonetheless distinguish those occurrences that do not fit with the Legislature’s intended application of Labor Law §240 (citations omitted).” Narducci at 270.
Runner also raised a plethora of questions. Are falling workers and falling objects to be treated differently? Does an object even need to fall at all? If the weight of the object is important, is the weight and height of a worker similarly relevant? Shouldn’t large and small workers be equally protected, and can’t small objects cause big injuries?
Courts have started to address these questions with outcomes that markedly expand the reach of the law.
For example, in Wilinski v. 334 E. 92nd Hous. Dev. Fund, 18 N.Y.3d 1 (2011), the most recent Court of Appeals falling object case, the size of the worker and forces generated by the object that fell seemed central to the analysis.
There, the court found that §240 may protect a 5´6″ worker struck by two 10-foot-tall pipes that unexpectedly toppled onto plaintiff causing injury after having been left standing on the floor following the ceiling demolition. The court, citing Runner, held that while the pipes and the worker were “on the same level,” the height differential was not de minimis “given the amount of force the pipes were able to generate” in tipping over. Id. at 2.
The dissent by Judge Eugene Pigott Jr. noted that the majority ruling disregarded multiple prior high court precedents going back to 19953 and 19984 dismissing §240 claims where “the base of the falling object is at the same level as the worker and the work being performed.” Id. at 13-14.
Moreover, Wilinski inspired a marked expansion of the statute’s application by exalting the relevance of force over fall particularly in recent First Department decisions.
For example, in Kempisty v. 246 Spring Street, 92 A.D.2d 474 (1st Dept. 2012), the First Department, citing Runner, held that §240 applied to a load test involving a four-ton steel block that was no more than six to 12 inches above the ground just prior to the accident and discounted the defense expert’s opinion that the cause of the injury was the plaintiff walking into the path of the suspended block.
Notably, the court rejected the minimal differential between the height of the block and the plaintiff’s foot as a bar to recovery under §240 focusing instead on the “extreme amount of force” created by the weight of the block as it traveled the short distance to the ground. The otherwise de minimis distance was rendered not de minimis as a matter of law again by reason of the force of the object’s weight.
Similarly, in Marrero v. 2075 Holding, 106 A.D. 3d 408 (1st Dept. 2013), the court further expanded §240′s application. While in Kempisty an object was arguably being hoisted, in Marrero, the court applied §240 where two steel beams that had been placed on an A-frame cart positioned on the same level (plywood planks) as the plaintiff, tipped onto plaintiff’s calf and ankle when the planks “buckled and shifted.”
The court applied §240 referring to the force the 500-pound beams “were able to generate during their descent.”
Marrero is significant because it seemingly ignored the historical requirements of 1) a “hoisting or securing operation”; 2) a device of the type set enumerated in the statute being called for by the task at hand and; 3) a significant height differential between the plaintiff and the object.
Most recently in Rodriguez v. DRLD Development, 109 A.D.3d 409 (1st Dept. 2013), the court held that §240 could apply to a common construction site condition and accident scenario not traditionally associated with the statute. In this case, the plaintiff tripped over a metal cable and “dislodged” a stack of sheetrock leaning against a wall and resting on two-feet-high wood blocks. Plaintiff was injured as she attempted to stop the sheetrock from falling over.
Although the application of §240 to this fact pattern appears to be an unprecedented reach, the court did at least leave the question of whether the statute had been violated to a jury noting that it could not be determined from the record “whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by [the statute].”
In contrast, the Second Department has generally held true to the traditional requirements for the application of §240 to falling objects,5 favorably citing Narducci in recent falling object cases denying plaintiff’s summary judgment6 or dismissing §2407 all of which underscores how this new prominence of additional forces has led to outcomes that are difficult to reconcile at best.
The emphasis on forces seems very similar to argument explicitly rejected by the court over 20 years ago in Rocovich v. Consolidated Edison, 78 N.Y.2d 509 (1991).
In Rocovich, the plaintiff suggested that §240 be defined not by any height differential but rather by a “fluid” “degree of hazard” approach. The court rejected that approach in holding that §240 was properly dismissed where a worker fell into a one-foot-deep trench carrying hot oil even though the task of walking near the slippery, oil-covered area was arguably particularly dangerous.
Interestingly, the court noted that adopting a “degree of hazard” interpretation would make Labor Law §241(6) “virtually useless.” Id. at 515.
Is the newer approach emphasizing the degree of force really a reformulated attempt at the repudiated “degree of hazard” argument?
As the above discussion highlights, in just over 10 years since Narducci, a number of decisions have dramatically imposed a new broader, vaguer standard that focuses on forces rather than falls. The Court of Appeals at times and the First Department seem to no longer require the plaintiff to show that a falling object was being hoisted or secured. Similarly these courts do not require that the object fall from above the plaintiff or that it even actually make contact with the plaintiff.
This has increased confusion, raised questions and left courts divided and parties with a greater level of uncertainty.
Are the protections of this law really best defined by the size of the object or worker and the forces that can be generated by the object? Does the new focus on forces extend §240 to types of movements beyond traditional falls such as leaning, swinging, rolling, shifting, slumping, traveling, tipping, toppling, sliding or any other motion that can generate enough force to cause injury? Are these kinds of losses too far removed from the risks that the law was originally intended to protect? Where is the language in the statute to support this interpretation? No doubt there is fallout to follow.
Stephen M. Cohen is a partner with Fabiani, Cohen & Hall. Julian D. Ehrlich is senior vice president Claims at Aon in New York.
1. See for example, Nieves v. Five Boro Air Conditioning & Refrigeration, 93 N.Y.2d 914 (1999); Ross v. Curtis-Palmer Hydro-Electric, 81 N.Y.2d 494 (1993); Rocovich v. Consolidated Edison, 78 N.Y.2d 509, 514 (1991).
2. See for example, Thompson v. St. Charles Condominium, 303 A.D.2d 152, 154 (1st Dept. 2003), where the court stated that there is no “definitive height differential at which 240(1) begins to apply.”
3. Misseritti v. Mark IV Constr., 86 N.Y.2d 487 (1995).
4. Melo v. Consolidated Edison of N.Y., 92 N.Y.2d 909 (1998).
5. See Grygo v. 1116 Kings Highway Realty, 96 A.D.3d 1002 (2d Dept. 2012), leave to appeal denied, 20 N.Y.3d 859 (2013), where the court declined to apply §240 in facts remarkably similar to Marrero where the plaintiff was injured when a cart holding sheetrock toppled over causing the cart and the sheetrock to strike the plaintiff in the right leg; Moncayo v. Curtis Partition, 106 A.D.3d 963 (2d Dept. 2013), §240 dismissed where the plaintiff was struck by a piece of sheetrock that inadvertently fell three stories when a worker who had been cutting sheetrock allowed a piece to slip from his hand;; but see McCallister v. 200 Park, 92 A.D.3d 927 (2d Dept. 2012), §240 found to apply where a baker scaffold being used to transport disassembled scaffold pieces tipped toward the plaintiff’s chest and pinned him against a wall and the court focused on the “combined weight of the device and its load, and the force it was able to generate over its descent” to find that the elevation differential was not de minimis.
6. Saber v. 69th Tenants, 107 A.D.3d 873 (2nd Dept. 2013); Ross v. DD 11th Ave., (2d Dept. 2013 Slip Op 05686).
7. Flossos v. Waterside Redevelopment, (2d Dept. 2013, Slip Op 5297).