In Villalba v. Robo-Braking Co., Inc., plaintiff, a drilling foreman for the general contractor on a construction project witnessed a coworker accidentally create a 14” by 16” hole on a platform with a machine. Plaintiff called a carpenter to repair the hole. Approximately 45 minutes later, plaintiff was helping move another machine backward on the platform when he partially fell into the 14” to 16” hole. Plaintiff sued the owner and construction manager for violations of New York Labor Law 240, among other claims. Plaintiff and defendants moved for summary judgment on the Labor Law 240 claim. The court found that plaintiff did not suffer an injury caused by an “elevation-related hazard.” While noting that the case law in similar situations was slightly inconsistent, the court followed the majority of Second Department decisions finding that a worker’s fall through a relatively small hole that happens to be at an elevation is “the type of ordinary and usual peril a worker is commonly exposed to at a construction site” and does not fall within §240(1)’s ambit.
The takeaway from this case is that measurements matter. Here, a 14” to 16” hole did not constitute a Labor Law 240 claim, but in other cases, slightly larger holes will constitute a Labor Law 240 claim. It is important for defense attorneys to be prepared to provide evidence as to the size of a hole, or the distance the plaintiff fell to properly defend the claim.