By: Thomas H. Welby Published: July 2013

Safety Policy: Estate Of Decedent, Crushed By Tipover Of Crate, Wins Summary Judgement Under "Scaffold Law"

In the years between 1995 and 2011, there occurred a "swing in the pendulum" at the New York Court of Appeals, regarding the interpretation of the State's "Scaffold Law," Labor Law § 240(1).

The Scaffold Law is best-known for providing enhanced protection, where construction workers suffer falls from elevated surfaces to a lower level. While § 240(1) is not quite a "strict liability" statute, imposing liability in all "gravity-related" accidents involving both falls and "struck-by" injuries from falling objects, an injured plaintiff's "comparative negligence" will not be considered in mitigation of the damages recoverable. The plaintiff's own negligence is a bar to recovery only where it is so pronounced as to be the "sole proximate cause" of his injuries. It is, nevertheless, a condition to recovery that the injury not only be caused by the force of gravity, but that it result from the employer's failure to provide a statutorily-prescribed protective device.

In 1995, at which time the dominant faction on the Court of Appeals favored a restrictive reading of § 240(1), the Court's decision in Misseritti v. Mark IV Construction Co. stated that Labor Law § 240(1) could not be the basis for recovery, where a worker suffered an injury caused by a falling object whose base stood at the same level as the worker.

In 2011, by which time the "barrel had rolled" in favor of a more liberal reading of § 240(1), the Court distanced itself from Misseritti, in the case of Willinski v. 334 East 92nd Housing Development Fund Corp. In Willinski, the plaintiff and co-workers were demolishing brick walls in a warehouse. Prior demolition had left standing two vertical plumbing pipes, rising about 10' from the floor on which the plaintiff was working. Debris from a wall being demolished struck the pipes, and the pipes fell over and struck the plaintiff, injuring him. The Court of Appeals did not hold in Willinski that Scaffold Law liability necessarily existed on the facts presented, but rather that it would no longer apply a "same level" rule to categorically bar liability.

Thus, the Court in Willinski did not make a definitive ruling as to liability or non-liability, but found an issue of fact, to be resolved at the trial court level, regarding whether the worker's injury resulted from the lack of a statutorily-prescribed protective device. If a device mentioned in the statute would not be necessary or expected in the circumstances, the peril would be incidental to construction work, and not within the statute's coverage. If, however, a device ought to have been in place, liability would not be excluded as a matter of law, merely because the falling object stood at the same level as the injured worker.

The trend toward more expansive coverage may not continue indefinitely, as two of its proponents have left the Court (Judge Jones having died, and Judge Ciparick - the author of the decision in Willinski - having retired). However, the trend seems, for now at least, to be continuing, as illustrated in Toney v. Raichoudhury, recently decided in Kings County Supreme Court.

The project in Toney was a residential remodeling job in Nassau County. Defendant Lee Remodeling was the general contractor, and defendant M&M Metals ("M&M") was a subcontractor, whose scope of work included the installation of curtain wall framing and glazing.

On the day of the accident, Erwin Toney was one of three M&M employees, whose only task for that day was to receive the delivery of six wooden crates of double-insulated thermal glass. The crates were delivered on a flatbed truck. The truck parked on the street in front of the residence. The truck was equipped with a crane, which was used to move the crates, one by one, to the driveway.

To facilitate installation, the workers staged the offloaded crates, each containing multiple plates of glass, so that when the crates were opened, the plates would not fall out, and the topmost sheet could be readily accessible.

This was accomplished in a fashion which was shown to be consistent with industry practice, and consisted of placing two crates upright, and parallel to each other on the driveway. The crates, each of which was roughly 9-10' tall, and weighed more than 1900 lbs., were then tilted towards each other, until the tops of the crates touched and supported each other, forming an "A". Then, the workers would use a screw gun to screw two wooden braces to the crates, one on each side, which braces served as crossbars to hold the crates in place.

While unloading the last two of the six crates, one of Toney's co-workers was attempting to secure the horizontal braces on the "A," as Toney and the other co-worker tilted the crates towards each other. Toney left his position to the side of the crates, and walked in front of the crates, to adjust the crate that was "off." The crate nearest to Toney began to shift, and he may have been trapped by the toes of his boots coming under the weight of the crate. The crate fell onto Toney, causing crush injuries that proved to be fatal. The two crates were not secured to each other with braces when they fell, and they were no longer attached to the crane. No chocks had been placed on the ground to prevent them from tilting outward before the wooden braces were secured.

A wrongful death and personal injury action by Toney's administratrix came before the trial-level Supreme Court on motions for summary judgment by Lee Remodeling, the general contractor, and M&M, Toney's employer. So far as relevant to our Scaffold Law discussion, the Court first declined to dismiss the § 240(1) claim, holding that the sufficiency of an elevation differential and a fall from a height should take into account the weight of the object and the amount of force it is capable of generating, even over the course of a relatively short descent.

The trial court in Toney then went even further, and granted summary judgment for the plaintiff on the issue of liability. It held:

  • that Toney was not the sole proximate cause of his injuries;
  • that the crates were not properly secured (or braced and chocked) before the crane line was released; and
  • that the crates - notwithstanding that they stood on the same level as the plaintiff - came within the purview of § 240(1), due to their size and weight, and the force they were capable of generating.

Toney is a trial-level decision. If the defendant chooses to appeal, it's a respectable argument that the better course would have been for Supreme Court to leave the ultimate issue of liability for the trier of fact, rather than granting summary judgment for the plaintiff.

Willinski and other recent cases, however, do seem to offer adequate support for the legal conclusions that, in falling object cases under § 240(1), there is no per se "same level" rule that excludes liability; that the weight of the falling object must be considered; and that the crucial factor is not the elevation differential, but the presence or absence of a statutorily-prescribed protective device.

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