A significant number of serious injuries to construction workers and tradesmen occur due to falls on construction sites within New York City and New York State.  New York State has very protective laws in place for the protections of workers in the construction trades.  If you or someone you care for has sustained injury as a result of a fall on a construction site, it is critical to make contact with an NYC construction accident law firm such as ours who has a significant degree of knowledge and specialization in the field of construction site related accidents.  

When injured as a New York City construction worker or tradesman on a construction site fall, the injured person always has a workers’ compensation case.  However, in addition to a workers’ compensation case, the injured construction worker does not always understand that they may have a viable third-party lawsuit.  If there is a third-party lawsuit, it proceeds separate and apart from the workers’ compensation claim.  The third-party lawsuit provides for a recovery that is much broader than workers’ compensation remedies, such as all economic losses (lost wages and future lost wages) , compensation pain and suffering and loss of enjoyment of life both past and future (if there is a permanent injury).

Many lawyers and New York City law firms do not follow this area of law as it is evolving and in order to achieve the best results it is important that your lawyer knows this area of law.  The area of construction site accidents is governed in large part by statutory provisions that are interpreted in an ongoing manner as this area of construction accident law is very much subject both by plaintiff’s and defendants to motions for summary judgment.  Because a summary judgment motion is a motion made as a matter of law before a trial (made either by the plaintiff to award liability as a matter or law or by a defendant to dismiss as a matter of law), there is a steady stream of continuing appeals to the higher courts and results therefrom that further define the statutes’ scope of protection.  An NYC lawyer that practices in this area must keep up to date on the ever changing landscape and must have significant experience in maximizing the presentation of damages in a personal injury action related to a construction site accident.

TWO CATEGORIES FOR CONSTRUCTION SITE FALL ACCIDENTS IN NEW YORK

For purposes of legal application a fall on construction site in New York can be divided into two different categories.  

1. FALL FROM HEIGHT ON NEW YORK CONSTRUCTION SITE:

The first is any fall from a height, namely a fall from a scaffold (see our dedicated Scaffold Accident Page), a fall from a ladder (See our dedicated Ladder Accident Page), a fall off the open edge of a building or structure or a fall through a unprotected opening.  Falls from a height on a construction site account for 96% of all falls that result in death.  

The above categories of accidents afford the protection of Section 240(1) of the New York State Labor Law, which provides as follows:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Section 240(1) provides near absolute protection regardless of worker fault if there is a violation of the statute.  This means the workers who falls from a height, be it a ladder, scaffold, fall from an unprotected edge or through an unprotected opening, can be awarded judgment as a matter of law as against the owner and general contractor regardless of their active fault.

The second is any type of trip and fall as a result of scattered material, tools or other tripping hazards within pathways of the construction site or other tripping hazards in other portions of the site that are inconsistent with the work being performed.

2. FALL SAME LEVEL (TRIP AND FALL) ON CONSTRUCTION SITE IN NEW YORK

The Center for Construction Research and Training has confirmed that although 96 percent of fatal falls in construction sites, where the result of falls to a lower level, slips, trips and falls on the same level caused more than half (51%) of all nonfatal construction site fall injuries in 2015.

In accidents involving a same level (non-height related) fall accident in New York, injury case are usually legally pursued under Section 241(6) of the new York State Labor Law, which provides as follows:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.  The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

As the last sentence of the above statutory provision sets forth, the commissioner via the New York State Industrial Code sets forth rules that are a predicate requirement to constitute a violation of Section 241(6) of the New York State Labor Law.  In other words, in order to have a viable third party case, the injured worker must provide a violation of the Industrial Code.  The law has further narrowed the requirement to only those provisions in the Industrial Code, which are specific in mandate.  

The other aspect that distinguishes 241(6) trip and fall cases from 240(1) falls from a height case, is in the non-height related categories, the defendant is free to argue comparative fault on the part of the injured worker.

For purposes of trip and fall cases on construction sites, the following Industrial Code provisions are most commonly cited for purposes of violation:

Section 23-1.7 (e)(1) (Passageways):  All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

Section 23-1.7 (e)(2) (Working areas):  The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

Section 23-1.7 (d) (Slipping Hazards): Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

Section 23.1-7(b)(1) (Hazardous Openings): (i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

     (ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.

     (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:

     (a)  Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or

     (b)  An approved life net installed not more than five feet beneath the opening; or

     (c)  An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

To the extent there is a trip and fall within any type of passageway (e-1) on a construction site, it is much easier to prove a violation than a general work area, as there is no limiting language of application as there is in the working area provision (e-2).  The second section requires the condition which caused the trip and fall was a condition that was inconsistent with the work being performed.  Judges presiding over these types of cases have often made findings as a matter of law that the condition is not inconsistent with the work being performed and therefore subject to dismissal. 

CASES OF INTEREST – TRIP AND FALL ON NEW YORK CONSTRUCTION SITES:

KAUFMAN v. CAPITAL ONE BANK (USA) N.A., 2020 NY Slip Op 06394 (11-10-20 – First Dept.)

Worker injured in a gut renovation project when pushing a dumpster through a hallway and the dumpster got stuck on the door saddle causing the plaintiff to sustain injury trying to prevent the dumpster from falling.  The Appellate Division found that the doorway was a defined pathway within the construction site and therefore Industrial Code Provision 23-1.7(e)(1), which requires that passageways be kept free from obstructions which could cause tripping.  Of significance, the court also found that Industrial Code Provision 23-1.7(e)(2) may apply as a “sharp projection” within a work area defined as sharp in so far as it is clearly defined or distinct.”  Therefore, the defendants’ motion to dismiss was denied.

KENNEDY v. COMMET 380, INC., 2020 NY Slip Op 33590(U) (10-19-20 – Kings Supreme)

Plaintiff an Ironworker tripped and fell over a metal pry bar on a landing of a stairwell.  Defendants moved to dismiss, and the court did find that the plaintiff fell within a passageway and therefore there was a viable 241(6) Labor Law case supported by an Industrial Code Provision 23-1.7(e)(1) violation.  The court noted that although passageway is not defined within the statute, the courts have held that a passageway is a defined walkway or pathway to traverse between discrete areas as opposed to an open area.

The court further found a violation as a matter of law of Industrial Code Provision 23-1.7(e)(2) as it requires the work area to be kept free from scattered tools and the tool plaintiff tripped over and caused plaintiffs fall was not part of the work he was performing, namely welding.

This case also stands for the proposition that the plaintiff can win a trip and fall construction site accident case on the same level as a matter of law.

HARRIS v. CITY OF NEW YORK, 2020 NY Slip Op 32989(U) (09-11-20 – New York Supreme)

Plaintiff, a Timberman was working on a manhole (outside).  To access the manhole the plaintiff has to walk along a 10 by 30 foot trench by walking on 12 X 12 beams called walers.  Upon exiting to retrieve a chainsaw, the plaintiff tripped and fell on a 2 by 4 piece of lumber which served as a top rail at the exit of the trench.  Plaintiff fell to the ground and sustained injuries.  Significant to this case, he claimed violation of Industrial Code Provision 23-1.7(e)(1), a passageway not contemplated to include any outdoor areas, but is limited to indoor work areas.  This provision was therefore rejected. 

As to the claim of Industrial Code Provision 23-1.7(e)(2) may apply as a “sharp projection” within a work area, the court found that even though a door saddle has been found to be a sharp projection, the 2X4 lumber did not project from the floor, but was merely lying on the ground at one end, and therefore this provision does not apply.

However, the court did find that there is a question of fact as to whether Industrial Code Provision 23-1.5(C)(3) was violated, as this provision requires, “all safety devices, safeguards and equipment in sue shall be kept sound and operable and shall be immediately repaired or restored or immediately removed from the job site if damaged.”  The court found that the 2×4 lumber could be considered a safety device and could be considered to be in need to repair or removal.  

DAVIS v. STRUCTURE TONE, INC., 2020 NY Slip Op 32868(U), (09-01-20 New York Supreme)

Plaintiff electrician slipped and fell within a hallway from the elevator on a wet greasy substance and then tripped over an electrical junction box protruding from the floor.  The court found a potential violation of Industrial Code Provision 23-1.7(e)(1), as this was considered a passageway and there was evidence that there was a safer way to install the junction box he tripped over.  The court rejected the Industrial Code Provision 23-1.7(e)(2) claim as the junction box was not debris, tools or other scattered materials, but rather an integral part of the construction site.  

Interesting to this case, the court found that Section 23-1.6 (d) (Slipping Hazards) did not apply as there was no evidence of what the slippery condition was, how long it was there and whether any of the defendants had notice of the alleged slipping hazard.    

PAWLICKI v. 200 PARK, L.P., 2020 NY Slip Op 32457(U), (05-13-20 New York Supreme)

Plaintiff while attempting to install a door frame while standing within a walkway within a windowed perimeter of a building and a sheet rocked wall stepped on an unsecured aluminum grill that was covering air-conditioning equipment below the grill (8 inches wide and 16 inches long).  The grill was not screwed down despite the presence of screw holes to allow for such.  Plaintiff’s foot slipped down into the opening and he hell up to his waist height.

The court rejected the Labor Law 240(1) violation that the work being performed was not a type of work that was engaged in an elevated type of risk that required safety devices and that the grill itself was not a contemplated device within the statute.

As to plaintiff’s 241(6) claim, the court rejected plaintiff’s Section 23.1-7(b)(1) (Hazardous Openings) claim, as the opening in question was not large enough to contemplate the protections required by this industrial code provision.  

Nonetheless, the plaintiff was successful in defeating defendants’ motion for summary judgment with respect to the claim of Industrial Code Provision 23-1.7(e)(1), as the court recognized that there is a question of fact as to whether the area plaintiff fell was a passageway.  If deemed a passageway, the protections of this provision would apply.

TORRES v. TRIBOROUGH BRIDGE & TUNNEL AUTH., 2020 NY Slip Op 32412(U) (03-05-20 New York Supreme)

Plaintiff was working on a roadway underneath an off ramp of the RFK Bridge.  He was assigned to clean up work.  He climbed over a Jersey Barrier and upon stepping down stepped onto the type of debris he was assigned to clean.  The court dismissed his 240(1) claim, as the accident was not caused by gravity related hazards contemplated by the statute.  As to his 241(6) claim, the court rejected his claim that the area he fell was a pathway within the scope of Industrial Code Provision 23-1.7(e)(1) and the court also rejected his claim that there was a violation of Industrial Code Provision 23-1.7(e)(2), finding that although the area he fell was a work area, the debris itself was the type he was charged with removing and therefore not inconsistent with the work being performed.   Plaintiff’s case was therefore dismissed.

QUINTERO v. CITY OF NEW YORK, 2020 NY Slip Op 32237(U) (07-10-20 New York Supreme)

Plaintiff construction worker tripped and fell on unevenly stacked metal plates on a roadway as an employee of a company that subcontracted with Con Edison.  Plaintiff’s 241(6) claim was made by the claims violations of Industrial Code provisions, 23-1.7(e)(1), 23-1.7(e)(2) and 23-1.1(a)(1).  The court surprisingly found that the outside area could be considered a pathway and did find that there was a question of fact as to the applicability of the remaining two provisions.

Defendants’ motion to dismiss was therefore denied.  

COYLE v. METROPOLITAN TR. AUTH., 2020 NY Slip Op 32122(U) (03-09-20 New York Supreme)

Plaintiff ironworker tripped and fell while carrying heavy angle irons on a Hudson Yards multilevel project.   He was walking on the deck open air of the 11th or 12th Floor and tripped on scrap metal banding.  The metal banding was debris from what was used to hold the bundles of decking together.  The plaintiff claimed violation of Industrial Code provisions of 23-1.7(d) 23-1.7(e)(1), 23-1.7(e)(2).  Significant to this case, the court did find that even though the floor area was open air with no walls, it did find that there was a question of fact as to whether the area he fell could be considered a passageway.  

SANCINO v. METROPOLITAN TRANSP. AUTH., 184 A.D.3d 534 (2020)(06-25-20 First Department)

Plaintiff ironworker attempting to move wheeled dumpster over unfinished floor covered in portions by plywood. As he was pushing the dumpster he heard a crack and the dumpster toppled over onto him.  The court did find that the claim was viable as the area he fell was a passageway (court mistakenly citing 23-1.7(e)(2) rather than 23-1.7(e)(1)).  The court also found that 23-1.28(b) (hand propelled vehicles shall be maintained in good repair…) and 23-1.5(c), (which requires all load carrying equipment shall be designed to safely support the load and shall be kept sound and operable), should be considered as a question of fact.

FALLS ON CONSTRUCTION SITES:

Falls on construction sites are one of the most common forms of construction site injury producing accidents in the State of New York.

If you or someone you care for has sustained injury as a construction worker or tradesman in New York City or New York State as a result of a fall on a construction site, please contact our law firm for a free no obligation consultation.  Our firm is committed to providing the best representation we possibly can in the field of construction related accidents.  A fall on a constructions site, be it a fall from a height, or a fall on the same level can cause serious injuries.  Any significant injury to a construction worker can put them out of work and it is critical that not only the construction worker pursue the workers’ compensation claim, which all workers are entitled to, but also explore the possibility of a third-party action with a law firm such as ours that understands this area of law.  There is no substitute for an in-depth analysis with a lawyer that knows and keeps abreast of the ever changing landscape of New York’s Labor Laws and their application to construction site related accidents.   Our law firm is privileged to represent construction workers and tradesmen in New York City and throughout the rest of the State of New York, and we welcome any inquiry concerning a construction related accident.  

If you have sustained a fall related injury on a New York construction site, contact us without hesitation.