People v. Suarez-Oh the Thoughts I'd be Thinkin', I Could Be Another Lincoln...
Keavey Fell Down, And Broke His Crown, But Couldn't Recover Under Labor Law s. 240(1)

Conflicting Labor Law Decisions?

The Fourth Department handed down a number of Labor Law decisions on December 22, 2005, and I'll be discussing and contrasting the holdings from two of those cases over the next two days. 

First up is Worden v. Solvay Paperboard, LLC .  Throughout this post, I've bolded relevant facts and language used by the Court for purposes of comparison with the second case, Keavey v. New York State Dormitory Authority, which I'll be discussing tomorrow.

In this case, the plaintiff was injured when he was struck from behind by the hook of an overhead crane on two separate occasions.  Each time he was in the process of retrieving building materials while standing on construction materials that had been loaded onto the bed of a tractor-trailor.  At issue was whether the lower court properly denied that part of the defendant's motion which had sought to dismiss the Labor Law s. 240(1) cause of action.

The Court first stated that the work being performed by the plaintiff fell within the ambit of Labor Law s. 240(1) since it was "ongoing and contemporaneous with" protected construction activity. 

The Court then concluded that the work performed by the plaintiff exposed him to an elevation-related risk, since he was working four to five feet above the ground and the "absence of an appropriate safety device such as a ladder was the proximate cause" of his injuries. According to the Court:

We cannot agree with the dissent, however, that there was no showing that the use of an appropriate safety device...would have prevented plaintiff from being struck by the crane on each occasion. Rather, we conclude that had an appropriate safety device contemplated by the statute, e.g., a ladder, an elevated bucket, or a harness, been provided, plaintiff could have avoided having to climb onto the load on the bed of the tractor-trailer to retrieve building materials. That activity "exposed [plaintiff] to the risk of falling from one elevation level atop the flatbed truck to a lower level, namely, the ground below ...[, and] we conclude as a matter of law that the absence of an appropriate safety device ... was a proximate cause of plaintiff's injuries."

The Court's conclusion makes sense, given that the plaintiff arguably could have avoided a fall from a height when he was struck by the crane if he'd been in an elevated bucket or harness.  I'm not sure that I agree that a ladder would have prevented his fall, but that's a very minor point of contention.

That being said, this holding does not, in my opinion, square with the Fourth Department's holding in Keavey, a case handed down on the very same day.  I'll compare and contrast the underlying facts and the Court's holding in both cases tomorrow.   In the meantime, let me know if you see any holes in the Court's logic that I may have missed.


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I agree with you that the two decisions do not accord with each other. However, more important in Worden is that it doesn't square with the Court of Appeals' decision in Toefer in Long Island R.R. This is problematic to me. The Court in Toefer expressly stated that a fall from a height of 4- to 5-feet off a trailer bed is not contemplated under LL sec. 240(1).

Nicole Black

I think it's possible that, as you pointed out at your blog, the apparent inconsistency between the Fourth Department's decision in Worden and the Court of Appeal's decision in Toefer is due to the fact that the plaintiff in Worden was standing on the trailer bed on top of a pile of materials that was 4 feet high, and thus fell from a hright of 8-9 feet, as opposed a fall from the floor of the trailer bed, which would have been a fall of 4-5 feet.

However, even if that was the Fourth Department's reasoning, it is strange that the Court didn't reference Toefer or explain its reason for seemingly ignoring controlling precedent.

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