Earlier this year, we reported on the First Department’s ever expanding Labor Law 240 liability based largely on a plaintiff’s ability to show foreseeability in accidents that do not involve a scaffold or gravity related falls.  The court recently again addressed this issue in Hettich v. 125 East 50th Street Co., LLC a case in which Hettich was inside a dumbwaiter working to replace its controller when the hoist cable broke causing the dumbwaiter to plummet 40 feet.  In denying all parties summary judgment, the court concluded that the ultimate cause of Hettich’s injury was a dangerous condition on the defendants’ property, namely, the malfunctioning hoist cable and not the manner in which Hettich performed his work based on evidence that the breaking strength of the cable was roughly seven times the combined weight of the dumbwaiter with Hettich inside.  The court concluded that if the hoist cable had been functioning properly it would not have snapped.  In reaching its decision, the court cited to our previously reported case, Garcia v. Neighborhood Housing Dev. Fund. Co., Inc., for its holding that a plaintiff in a case involving collapse of a permanent structure must establish that the collapse was foreseeable.  Notably absent from the court’s opinion in Hettich is any reference to the trial court’s conclusion that the record shows that the possibility of the hoist cable breaking was not considered a foreseeable risk with this particular dumbwaiter.  Thus, just how far Garcia expands Labor Law 240 liability remains to be seen.

Thanks to Alicia Sklar for her contribution to this post.  For more information, please contact Nicole Y. Brown at .