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Fourth Department Concludes Presence of Safety Harness at Worksite Not Enough

Keavey's Still Out of Luck

You may recall this post from last December wherein I asserted that the Fourth Department had issued conflicting labor law decisions.  Yesterday, the Court of Appeals handed down its decision in one of the cases discussed in that post, Keavey v. New York State Dormitory Auth., 2006 NY Slip Op 03445.  The Court  upheld the Fourth Department's decision.

The Court of Appeal's decision was quite short.  Here is the substantive portion of the decision in its entirety:

The Appellate Division properly dismissed plaintiff's Labor Law § 240 (1) and § 241 (6) causes of action. The act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity related accident encompassed by Labor Law § [*2]240 (1) (see Toefer v Long Island R.R., 4 NY3d 399 [2005]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Further, plaintiff failed to demonstrate the applicability of any section of the Industrial Code.

Unfortunately, the facts were not set forth in this opinion, so it's still unclear whether the plaintiff fell into the gap up to his knee or up to his elbow (the Fourth Department's decision offered conflicting statements regarding that fact).  Arguably, if one assumes the most extreme factual scenario, that the plaintiff fell up to his elbow, the Court is holding that even a fall of eight feet while standing on a trailer bed is not a gravity-related incident. 

This decision seems to contradict the Fourth Department's decision in Worden v. Solvay Paperboard, LLC , which I discussed here.  In Worden, the Fourth Department concluded that the plaintiff faced a gravity-related risk when he fell four to five feet from a tractor trailer bed.  As noted by Matt Lerner of New York Civil Law in the comments to my post and at this post from his blog, the decision in Worden was made without reference to Toefer and appeared to directly contravene the Court of Appeal's decision in Toefer.  That premise is further supported by the Court of Appeal's decision yesterday in Keavey.  I wonder if the decision in Worden is being appealed.  By all rights, it should be.


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