The majority in the Second Department expanded Labor Law 240 to encompass a fall from an 8-inch high platform of a prime mover (a mini forklift). In Somereve v. Plaza Construction Corp., plaintiff operated a prime mover to hoist a load of bricks onto scaffold approximately six feet high. While plaintiff was operating the machinery and placing the bricks atop the scaffold, the forklift flipped forward and plaintiff fell off the platform of the machine onto the floor. The majority found plaintiff was catapulted from the machine – he was ejected upward, hit the ceiling and was slammed to the ground. The majority found this sequence of events ‘gravity related,’ regardless of the fact that the platform from which plaintiff fell from was eight inches high.

Plaintiff moved for partial summary judgment on the Labor Law § 240(1) claim prior to the completion of depositions. Plaintiff’s motion was granted on the basis the prime mover moved forward due to the force of gravity and failed to offer adequate protection to the plaintiff. The Court found that if the accident occurred because the mover or the scaffold could not support the weight of the bricks, gravity applied during the hoisting operation and plaintiff was entitled to summary judgment. The majority of the court did not require further discovery or depositions since comparative negligence was not a defense to Labor Law § 240.

The dissent found the majority’s reasoning conclusory since there was no defect in the machine or the scaffold or any evidence that the mover could not support the weight of the bricks. The minority argued that the platform of the machine was not a type of elevation related risk enumerated in the statute, the fall was de minimis and plaintiff could not provide an explanation as to how his accident occurred. Plaintiff did not argue that a hoisting device should have been provided, and no evidence was offered to show that a hoisting device was even proper equipment for plaintiff to work at the time of his injuries. Further, the dissent argued there was a factual issue as to whether plaintiff’s injuries were caused solely by his own negligent operation of the machine and further discovery and depositions were necessary to determine the intricacies regarding plaintiff’s accident.

The First Department has continually expanded the reach of Labor Law 240, and now we see that the Second Department is following suit.  Previously the height from which a plaintiff fell could create a de minimus fall defense, but with each decision expanding Labor Law 240 application, it appears that the Appellate Divisions are chipping away at that defense.

Thanks to Poonam Sethi for her contribution to this post.