In Vitale v. Astoria Energy II, LLC, et. al. the plaintiff was a surveyor injured while working at a construction site. At the time of the accident, plaintiff was verifying the accuracy of the location of approximately 200 anchor bolts, which needed to be tightened before the concrete foundation was poured. This required plaintiff to walk from anchor bolt to anchor bolt, across the top of a rebar grid that was around 100 feet by 50 feet, and 5 feet high.  The rebar grid had square openings, which were about 12 inches by 12 inches. The plaintiff allegedly was injured when he lost his balance while walking across the top of the rebar grid and his left leg fell through one of the square openings of the rebar grid.

Plaintiff sued, alleging, in part, violations of the New York Labor Law, but the defendants were awarded summary judgment against these those counts, and that decision was affirmed by the Appellate Department. The defendants established that the openings of the grid, which were not of a dimension that would have permitted the plaintiff’s body to fall completely through and land on the floor below, were not an “elevation-related hazard” protected under the Labor Law.  Likewise,  these openings did not qualify as “hazardous openings,” under the New York administrative code as they were too small for a worker to completely fall through.

Thanks to Paul Vitale for his contribution of this post and please write to Mike Bono for more information.