The New York Appellate Division recently confirmed that liability under the Labor Law does not extend to persons injured while involved in tree cutting and landscaping work.

In Cicchetti v Tower Windsor Terrace, LLC, the plaintiff was carrying tree branches to a wood chipper when he was struck by falling tree branches being cut off by a co-worker. He was struck on the head by a three foot by eight inch chuck of the stump. Prior to being hit, the plaintiff’s co-workers tried to warn the plaintiff of the incoming tree stump, but plaintiff could not hear the warnings because he was wearing ear protection.

The plaintiff filed a lawsuit alleging, in part, a violation of Labor Law Sections 240 (1), otherwise known as the “Scaffold Law,” which was designed to protect workers in construction projects against injury from the inherently hazardous work posed by working at elevations. The statute protects workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The defendants filed a summary judgment motion and the Supreme Court granted the motion and dismissed the complaint.

On appeal, the plaintiff argued that the tree cutting work was a pre-requisite to a fence removal project at the premises that was to be undertaken at a later time. The Court rejected this argument finding that the work at the time of the plaintiff’s accident, i.e. tree cutting/landscaping, takes this case out of the protections of the Labor Law. The Court reached its decision that the plaintiff’s accident was not included within the protection of the Labor Law by a plain language reading of the statute and applying decades of precedent, ruling that “under settled case law, a tree does not qualify as a building or structure.”

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.