In Wilinski v. 334 E. 92nd Housing Development Fund, the Court of Appeals up-ended an evolving body of case law that precluded a plaintiff from recovering under Labor Law § 240(1) when the plaintiff and the base of the object that fell on him stood on the same level.
There, the plaintiff was demolishing brick walls at a vacant warehouse owned by defendant. Previous demolition of the ceiling and walls left metal, vertical pipes measuring four inches in diameter and standing ten feet tall, exposed and unsecured. Before plaintiff began work, he voiced concern to his supervisor about the pipes. Nonetheless, they were not secured. Later that day, debris from a nearby wall knocked the pipes down, injuring plaintiff.
The Supreme Court granted plaintiff summary judgment, but the Appellate Division reversed and awarded defendant summary judgment. In doing so, it held that plaintiff’s accident was not the type of accident § 240(1) was meant to guard against since both the pipes and plaintiff were at the same level. Thus, the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability.
In rejecting the “same level” rule applied by the Appellate Division, the Court of Appeals, quoting Runner v. New York Stock Exch., 13 NY3d 599 (2009), stated that, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Applying this rule, the Court found an issue of fact as to whether the defendant violated § 240.
The Court focused on the fact that plaintiff stood 5’6″ tall, that the pipes fell at least 4 feet before striking plaintiff, and that since they were 4″ in diameter, the height differential could not be described as de minimis given the amount of force the pipes were able to generate over their descent. Given these factors, the Court found that plaintiff suffered harm that flowed directly from the application of the force of gravity to the pipes.
However, although injuries arose the risk arose from a physically significant elevation differential, there was an issue of fact as to whether plaintiff’s injury was the direct consequence of a failure to provide adequate protection against that risk. In that regard, neither the plaintiff nor the defendant submitted sufficient evidence to establish that a protective device prescribed by the statute would have been applicable or inapplicable.
Thanks to Gabriel Darwick for his contribution to this post.