The New York Court of Appeals has again drastically expanded the scope of Labor Law 240(1) liability on Owners and General Contractors, holding that an object does not have to fall from a height to impose liability.

In Wilinski v. 334 East 92nd Housing Development Fund Corp, 2011 NY Slip Op 7477, decided October 25, 2011, the plaintiff was demolishing the walls of a warehouse building. In front of the brick wall that the plaintiff was demolishing were two metal plumbing pipes, approximately eight to 10 feet in height stretching vertically from the floor on which the plaintiff was standing. Two workers, using hammers and crowbars, demolished an adjacent wall about four feet away from the plaintiff, causing that wall to collapse into the pipes. The pipes toppled onto the plaintiff, causing injury.

The court held that the plaintiff is not precluded from recovery under Section 240 (1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood at approximately 10 feet and toppled over to fall at least four feet before striking the plaintiff, who is 5′ 6″ tall. That height differential cannot be described as de minimis given the amount of force the pipes were able to generate over their descent. Thus, the plaintiff suffered harm that flowed directly from the application of the force of gravity to the pipes. The court noted however, though the risk here “arose from a physically significant elevation differential,” it remains to be seen whether the plaintiff’s injury was the direct consequence of the defendant’s failure to provide adequate protection against that risk. The plaintiff has the burden of showing that a device enumerated in the statute would have prevented the accident.

This dramatically increases the exposure on owners and general contractors for worksite injuries. Previously, the object had to fall from a height and be a material or load being hoisted or needing to be secured. Now, no height is necessary; merely falling over, from the same level, is enough.

The court seems to give significance to the fact that the pipe was a heavy object which fell a distance of four feet from the top of the pipe to the top of the plaintiff’s 5’6” head. What if the plaintiff was standing close to the pipe and the end closest to the floor landed on his foot? Then, the heavy pipe would have only fallen a matter of inches. What if it the other end had landed on another worker’s foot? That end fell 10 feet. Does one recover but not the other?  None of this will make workers safer. It only ensures more litigation.

If you have questions about this decision, please contact a member of Goldberg Segalla’s Construction Practice Group.

Author: William J. Greagan (518.935.4220; wgreagan@goldbergsegalla.com)