In Suwareh v. State of New York, 2005 N.Y. Slip Op. 10217, the First Department considered the issue of whether the defendants were liable as a result of the plaintiff's burn injury, which was sustained by the plaintiff as he stood on a roof. He was hauling a hot bucket of tar up to the rooftop using a rope, and when he attempted to free the bucket, which had become stuck on a ledge on its way up to the roof, he lost his balance and leaned back so as not to fall. As he did so, hot tar spilled from the bucket onto his feet.
The Court noted that the defendant's expert had opined that one of two alternate methods should have been used to transport the hot tar to the roof. The Court then considered whether the injury was gravity-related. The Court first set forth the applicable standard:
The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 ).
The Court then concluded that the defendants were liable pursuant to Labor Law s. 240(1) since the plaintiff was injured as a result of a gravity-related risk in that 1) he was working at an elevated height and 2)was involved in hoisting dangerous materials from one level to another.
The Court stated that:
(T)he risk of injury was the direct result of the application of gravity to either plaintiff himself or the materials being hoisted. Had plaintiff been supplied with a proper hoist to lift the tar, and a proper brace to prevent him from losing his balance on the elevated roof, the accident may not have occurred.
I am puzzled by this holding and, once again, find myself in agreement with the dissent. The dissent noted that pursuant to the Court of Appeals case, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 (1993), Labor Law s. 240(1) was intended to provide special protections for certain elevation-related hazards. The Court quoted the following from Ross:
The special hazards' to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the special hazards' referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. In other words, Labor Law § 240 (1) was designed to prevent those type of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person (81 NY2d at 501 [second emphasis added, citation omitted]).
The dissent then stated:
To be sure, as claimant's expert opined, if a hoist had been used to transport the buckets of hot tar to the roof, claimant well may not have sustained the burns to his feet. But that is irrelevant. Injuries that do not result from elevation-related hazards "are not compensable under [Labor Law § 240(1)] even if proximately caused by the absence of an adequate scaffold or other required safety device" (id. at 500).
The dissent's position makes perfect sense to me. He was injured after he'd bent down to dislodge the bucket from a ledge, which was presumably right below the roof, since the plaintiff spilled the tar onto his feet as he was dislodging the bucket. The plaintiff could have easily lost his balance and been injured in this exact manner if he'd been standing on the ground and attempted to pick up a bucket of hot tar which had become stuck to the ground or caught on a tool, etc. The fact that the surface upon which he was standing was elevated did not cause his injuries, nor did the fact that the bucket was being hoisted. His injuries were only tangentially related to the causal effects of gravity and thus should not have fallen within the ambit of Labor Law s. 240(1).
It seems to me that a number of the Appellate Divisions are gradually expanding the class of injuries covered by Labor Law s. 240(1) beyond that contemplated by the legislature, or, for that matter, the Court of Appeals. Is it my overactive imagination at work, or is this a recurring theme as of late? If it's the latter, I wonder what the impetus is behind it?