In Salazar v. Novalex Contracting Corp., the First Department examined prior Labor Law § 240 decisions and found that holes (trenches/troughs) in those cases were not deep enough to create an “elevation-related risk” for the workers who stepped into them. For example, in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991), the Court of Appeals found that there was no liability under Labor Law § 240 because it was “difficult to imagine how plaintiff’s proximity to” a 12-inch deep, 18- to 36-inch-wide trough “could have entailed an elevation-related risk”. Similarly, in Romeo v. Property Owner (USA) LLC, 61 A.D.3d 491 (2009), the worker stepped into an opening in a raised computer floor that was created when one of the floor tiles was removed. In Romeo the opening was 2 feet by 2 feet and 18 inches deep, and therefore the First Department held that it was not deep enough to create an elevation-related risk. In Salazar, the court found that the trench that plaintiff fell into was 4 feet deep and 15 feet long. The court held that, while the 12 to 18-inch drops in Rocovich and Romeo did not call for a protective device within the statute’s contemplation, the four-foot-drop in Salazar did. The court further elaborated by stating that the bottom of the trench in Salazar represented a separate level, which, relative to the floor itself, constituted a gravity-related hazard covered by section 240.

The First Department’s decision here makes the applicability–or lack thereof– of Labor Law § 240 even more fact intensive then before. When examining the potential applicability of Labor Law § 240, advocates must now take out their rulers to determine whether the hole at issue is deep enough for the statute to apply.

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.courts.state.ny.us/courts/ad1/calendar/appsmots/2010/April/2010_04_01_dec.pdf.