Conflicting Labor Law Decisions?
Kleptomaniac or Overzealous Court Officers? You Decide.

Keavey Fell Down, And Broke His Crown, But Couldn't Recover Under Labor Law s. 240(1)

Admittedly, the title of this post doesn't rhyme, but I thought that it was fitting since, in my opinion, the Fourth Department's decision in Keavey v. New York State Dormitory Authority (2005 N.Y. Slip Op. 09824)  had no rhyme or reason to it either.  The Court's holding in Keavey is particularly perplexing given that it was decided on the same day as Worden v. Solvay Paperboard, LLC, (2005 N.Y. Slip Op. 09820) which was the topic of yesterday's post.  The Court reached incongruous conclusions in these cases despite what I consider to be very similar fact patterns.  Edited to add:  This is another unusually long, drawn out post, so bear with me once again.

In Keavey, the plaintiff was walking backwards on top of an eight-foot-high stack of insulation boards and attempting to cover the stack with a tarp when he fell into a gap and was injured.  The majority opinion states that he fell into the gap up to his knee, while the dissent states that he fell up to his elbow.  (I'm not sure if the discrepancy is a typographical error, but for the sake of my argument here, I'm assuming that he fell up to his elbow.)  The majority of the Court concluded that:

The hazard at issue herein to which plaintiff was exposed, i.e., slipping into a gap between insulation boards, was one of "the usual and ordinary dangers of a construction site, and [was not one of] the extraordinary elevation risks envisioned by Labor Law § 240 (1)" (Rodriguez v Margaret Tietz...Ctr. for Nursing Care, 84 NY2d 841, 843; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916; Robinson v East Med. Ctr., 17 AD3d 1027, 1027-1028).

In a moment, I'll examine each of the cases cited by the Court in support of its holding, but first, I'd like to compare and contrast the underlying facts in this case with those in Worden.

In Worden, the plaintiff was standing on construction materials that had been loaded onto a bed of a tractor trailer and was working 4 to 5 feet (presumably he was approximately 8 feet off of the ground) above the trailer bed when he was struck by the crane and fell to the ground.  And, in Keavey, the plaintiff was walking on top of an eight-foot-high stack of insulation boards.  Thus, both were standing at approximately the same height when they fell.  Worden fell approximately 8 feet to the ground, while Keavey fell approximately 4-5 feet into the insulation boards, if one assumes that he fell up to his elbow.  That one fell off of the materials while the other fell into them should be of no consequence; both plaintiffs were exposed to and injured as a result of an elevation-related risk and the absence of an appropriate safety device.

The underlying fact patterns and legal principles set forth in the very cases cited by the Fourth Department in support of its holding in Keavey support this conclusion. 

In Rodriguez v. Teitz Ctr. for Nursing Care, 84 N.Y.2d 841, the Court of Appeals concluded that "(i)n placing a 120 pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, Rodriguez was not faced with the special elevation risks contemplated by the statute."   Thus, as the plaintiff in Rodriguez was standing on the ground when injured, the facts are distinguishable from Keavey and Worden.

In Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, the plaintiff was injured as he stepped from the bottom rung of a ladder and twisted his ankle as his foot touched the ground.  Thus, the plaintiff was injured when he stepped to the ground, unlike Keavey and Worden, both of whom fell from an elevated surface.

Finally, in Robinson v. East Med. Ctr., 17 A.D.3d 1027 (4th Dept.), the plaintiff was standing on a ladder which began to fall, but the plaintiff avoided falling by grabbing onto a hanger rod affixed to the ceiling, thus regaining his balance.  In support of its conclusion that no Labor Law s. 240(1) liability existed since the plaintiff had not fallen from an elevated surface, the Fourth Department stated:

What is determinative of Labor Law § 240 (1) liability, in our view, is the fact that plaintiff here did not fall at all, whether from or at a height, meaning from any elevated work surface to a different and lower level.  Rather, the record demonstrates as a matter of law that, immediately upon regaining his balance, plaintiff was standing at the same level at which he had been working before the incident. (Internal citations omitted and emphasis added.)

Thus, the underlying fact pattern in Robinson differed from Keavey and Wordon in that the plaintiff never fell from his perch on the ladder.  Of even more significance, however, is that the Court's own language regarding Labor Law s. 240(1) liability in Robinson directly contravenes its holding in Keavey.  The plaintiff in Keavey fell from an elevated surface to a lower level and thus liability pursuant to Labor Law s. 240(1) should have attached.

If one accepts that Keavey fell only up to his knees, then perhaps my argument is weakened somewhat.  But, even with that fact pattern, Keavey still fell from an elevated surface to a lower level, thus making Labor Law s. 240(1) applicable. 

I'm flummoxed by the Court's holding in Keavey.  Perhaps I've missed an important element, or perhaps the record on appeal would shed some light on this decision.   As it stands right now, I can't make heads or tails of this decision.  Any and all insight from my faithful and knowledgeable readers would be greatly appreciated.


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Really interesting posts. I haven't read the decisions, so I may be full of it. Could the common element be whether you were off the "ground" as opposed to on an elevated part of ground (the "hill" of insulation boards). Still doesn't make much sense but I suppose you've got to draw the line somewhere...?

Michael Hutter

I just posted on Matt lerner's Civil Law site my thoughts on the 4th dept decision.

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