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.