Coming up Short – Second Circuit Appellate Court Requires Significant Elevation Difference for Labor Law §240(1)

In Simmons v. City of New York, Plaintiff was injured while working as a plumber on a project for the City of New York. Plaintiff was using a pallet jack to move an air compressor weighing over 600 pounds. The compressor was lifted six inches off the ground and was only secured by two pieces of scrap wood wedged around the sides of the compressor. Plaintiff was pushing the compressor from behind when the pallet jack ran over concrete debris and stopped short causing the compressor to roll off onto plaintiff’s ankle.

The lower court granted summary judgment dismissing the Labor Law §240, §241(6), and §200 claims.  On appeal, the Second Department affirmed dismissal of the Labor Law §240 claim holding that it was not enough that the injury was caused by the application of gravity, there must be a significant elevation difference. A plaintiff must show that “at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” and the object fell because the absence of a safety device.”

Notwithstanding the Labor Law §240 dismissal, the Second Department reinstated the §241(6), and §200 claims against the general contractor.

The Appellate Court’s decision with regards to Labor Law §240(1) could be impactful with how we analyze the “elevation related risks” required by the statute. When an object falls from a short height or tips over from the same level as the plaintiff, courts often look at the weight of the object to determine how much force it was able to generate during its fall. Here, the court did not analyze the weight or the force created by the object, but focused solely on the height it fell from and whether it was the type of activity which required a safety device as enumerate in Labor Law §240.

Thanks for Jesse Sussmane for his contribution to this post.