Julian D. Ehrlich
Julian D. Ehrlich (Handout)

Recently, a long-simmering rift has widened within the Appellate Divisions regarding the application of Labor Law §240 to the common worksite accident scenario where a portion, but not all, of a worker’s body falls through an opening.

Under strikingly similar factual scenarios in which workers walking on top of rebar grids partially slipped into 12-inch by 12-inch openings, the First and Second Departments reached opposite conclusions.

This split highlights broader questions as to the nature and scope of the duty imposed by this challenging law.

The Split

InBrown v. 44 St. Dev., 137 AD3d 703 (1st Dept. 2016), §240 was found to apply where both of the claimant’s feet slipped through 12-inch by 12-inch openings in rebar latticework down “about a foot deep.” The Appellate Division First Department held that the plaintiff fell as a result of an elevation related hazard.

In contrast, in Vitale v. Astoria Energy II, 138 AD3d 981 (2d Dept. 2016), plaintiff’s §240 claim was dismissed by the Appellate Division Second Department where the plaintiff lost his balance while walking across the top of a 5-feet-high rebar grid with 12-inch by 12-inch openings and his left leg fell through a square up to his groin.

The Second Department found that the openings of the grid “were not of a dimension that would have permitted the plaintiff’s body to completely fall through and land on the floor below enough.” Thus, there was no elevation related hazard requiring a protective device.

Moreover, the courts in Brown and Vitale relied on ample precedent in their respective departments revealing the split as long standing.

Labor Law §240, the so-called Scaffold Law, is often associated with height differentials1 and, more recently, the weight of falling objects.2 However, as demonstrated in Brown and Vitale where §240 was dismissed for the loss with the greater height differential, in some falling worker cases, the width of an opening may be more important than the depth.

Brown and Vitale appear irreconcilable. However, there are Court of Appeals decisions which offer direction as to liability for falls into small holes while simultaneously raising more significant questions about the nature and scope of the duty to provide fall protection under §240.

Higher Authority Guidance?

The Court of Appeals most recently and thoroughly addressed the scope of duty imposed by §240 in falling workers cases in Nicometi v. Vineyards of Fredonia, 25 N.Y.3d 90 (2015).

In Nicometi, the plaintiff was working on stilts, which he described as three to five feet high, while installing insulation in a ceiling when he slipped on a thin patch of ice and fell.

The court dismissed the §240 claim stating that “the relevant and proper inquiry (emphasis added)” is whether the hazard plaintiff encountered was a separate hazard wholly unrelated to the hazard which brought about the need for a safety device in the first instance. Id. at 98.

Citing precedent, the court further stated that “regardless of the type of safety device involved, liability under Labor Law §240 arises only where the plaintiff’s injuries are the ‘direct consequence’ of an elevation-related risk, not a separate and ordinary tripping or slipping hazard.” Id. at 98-99.

While Nicometi did not involve a small hole, that decision is instructive as to falling-worker claims and the importance of whether the risk is ordinary or extraordinary, thereby requiring a safety device under §240.

But who decides and defines ordinary and extraordinary? Is the issue properly decided by a jury or the court? Is expert opinion appropriate?

The briefs in Brown reveal that the parties’ experts disagreed as to whether plywood covering over the rebar grid was necessary and that the plaintiff finished work on the day of the accident by crossing the lattice hopscotch stepping over the bars onto the ground between the squares, indicating there was a possible alternative method to traverse the area.

Does the frequency with which a condition occurs or whether it is unavoidable make a risk ordinary?

The large body of reported case law and even a pedestrian understanding of construction would indicate that small holes of all shapes and sizes are common at job sites.

Again, the sheer number of cases involving falls through 12-inch by 12-inch openings rebar grids would indicate that this is a standard size for such mats. Nonetheless, this is the very size that seems to divide the courts.

Additional guidance on falls into small holes may be gleaned from the decision of Court of Appeals in Keavey v. New York State Dormitory Authority, 6 N.Y.3d 859 (2006).

In Keavey, the court succinctly stated that “[t]he act of falling into a five-to-six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity-related accident encompassed by Labor Law §240 (1).” Keavey suggests some small holes do not need to be covered.

What threshold width or diameter size does a hole need to be to require fall protection? When are smaller size holes more akin to ordinary tripping hazards?

The court in Vitale noted that the 12-inch by 12-inch rebar opening was too small for the worker’s entire body to fall through which suggests a criteria based on the worker’s size.

Does the waist size of the particular injured worker or the girth of an average construction worker determine when protection is needed? A standard based on body size would, of course, vary widely by worker.

Other Considerations

In addition to these questions, another Court of Appeals decision about falling workers claiming liability pursuant to §240, Salazar v. Novalex, 18 N.Y.3d 134 (2011), suggests that other important considerations are the practicality of coverings and the purpose of the work.

In fact, the court in Nicometi cited Salazar for the proposition that the application of §240 requires “a commonsense approach to the realities of the workplace” that is “careful not to interpret the statute in an illogical manner that would be impractical and contrary to the very work at hand.”

In Salazar, the plaintiff, Raul Salazar, walked backwards into an open two-foot-wide, three-to-four-foot deep trench which he was filling with wet concrete. The plaintiff argued that the trench should have been barricaded or covered.

However, the court dismissed the §240 claim stating “[h]ere, the installation of a protective device of the kind Salazar posits—assuming such a device, although not listed in Labor Law §240(1), was an ‘other device’ within the meaning of the statute—would have been contrary to the objectives of the work plan in the basement.” Id. at 139-140.

Furthermore, the court opined that a cover would have been illogical and impractical.

Interestingly, the court in Salazar also dismissed the plaintiff’s Labor Law §241(6) claim “for similar reasons.” Id. at 140.

The plaintiff relied on Industrial Code 12 NYCRR 23-1.7 (b)(1)(i), which requires “every hazardous opening into which a person may fall or step shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part.”

In deeming this code section inapplicable, the court stated “covering the opening in question would have been inconsistent with filling it, an integral part of the job.” Id.


As the above discussion highlights, small holes make for big problems in Labor Law §240 cases.

Moreover, small openings are common at construction sites and are frequently a necessary part of the work as the job progresses. One-foot square openings in rebar grids are just one type of small openings at job sites. Accordingly, we can expect more claims in the future involving partial falls through small openings.

As the Court of Appeals stated in Nicometi, “it remains the law that the plaintiff’s injuries must be caused by an elevation-related risk, the type of extraordinary peril section 240(1) was designed to prevent and not a usual and ordinary danger at a construction site.”3

Questions linger as to what commonly occurring conditions qualify as ordinary perils and what holes qualify as too small, impractical, illogical or inconsistent with the work to require covers.

The lines are drawn and the parties’ arguments are well worn but the Appellate Divisions remain split. Until the Court of Appeals resolves this rift, the application of §240 to these losses will depend primarily on the venue and workers, parties and practitioners will be left to fall into the abyss with insufficient guidance.


1. See Brian J. Shoot, “‘Falling Object’ Liability: Contrasts in First and Second Departments,” NYLJ Nov. 8, 2016; Julian D. Ehrlich, “Construction Site Personal Injury Litigation,” Second Edition, Chapter 4 “Scope of the Scaffold Statute-Labor Law §240″ (New York State Bar Association 2014); Julian D. Ehrlich, “Height Differentials Under Labor Law §240,” NYLJ, July 8, 2004.

2. See Julian D. Ehrlich, “The Latest Move in Falling Object Cases Under Labor Law §240,” NYLJ, Oct. 22, 2013.

3. Nicometi, 25 N.Y.3d 90, n. 3.