Outside Counsel

An Opening in Labor Law §240

, New York Law Journal

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Julian D. Ehrlich writes: Recently, a long-simmering rift has widened within the Appellate Divisions regarding the application of the Scaffold Law to the common worksite accident scenario where a portion, but not all, of a worker's body falls through an opening.

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  • Adam B. Rosen

    In Salazar, the First Department stated "Absent any Court of Appeals precedent to the contrary, Carpio remains the law of this Department" - the Court of Appeals had an opportunity to address this, but alas it decided case on other grounds, and so we wait.

  • Matthew Siegel

    It is a basic tenet of tort law that the risk to be perceived defines the duty to be obeyed. That said, as this interesting Article indicates, I think the litmus test should be a commonsensical -- rather than a drily-logical -- one within the context of Rocovich, Broggy, Melber, etc., as well as recent caselaw addressing truck tailgate falls: Does the offending work-related activity give rise to the type of foreseeable “physically-significant elevation-related” -- rather than tangentially gravity-related -- hazard for which the owner, contractor, their "statutory agent" (and/or anyone else who actually or contractually retained the duty to direct and control the injury-producing work) otherwise would have been under an absolute duty to prevent under Labor Law 240? As noted by the Court in Rocovich: “The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances, we believe, that the Legislature has seen fit to give the worker the exceptional protection that section 240 (1) provides” Accordingly, the Court concluded in Rocovich that a worker injured when his foot and ankle fell into a 12-inch [deep] trough containing heated industrial oil did not state a Labor Law § 240 (1) claim. We reasoned that “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).” In this regard, Nicometi cannot be reconciled with Melber, which it cites, and appears myopic and aberrational, since the injuries in Nicometi, unlike those in Melber, flowed from a deficiency in the device – stilts -- that was related to the “extraordinary/physically-significant” height differential under which plaintiff Nicometi had to work, and which brought about the need for such stilts in the first instance, as an alternative to a properly-placed ladder, as maintained by Chief Judge Lippman in his cogent dissent!

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