Construction Site Accidents / Falls From a Height / Labor Law 240 (1)

Construction Site is a Dangerous Place:

At the Law Offices of William Cafaro, we understand the hazards that are frequently found on jobsites, and how seriously you can be hurt because of someone’s carelessness.  If you get hurt, who will pay the mortgage and put groceries on the table? Even if you’re being careful, foremen frequently pressure workmen to take short cuts and get the job done to make deadlines, because many contractors worry more about getting their progress payments from the owner on time than they do about your safety.

Injuries that are Height/Elevation Related:

The Scaffold Law – Recovering for Full Future Lost Earnings and Pain & Suffering Instead of Just Worker’s Comp Benefits:

The Scaffold Law, § 240(1) of the Labor Law, generally requires owners and contractors to provide enough protection to men working at heights so they will not fall. When a worker falls from a height and is injured, this law often places complete responsibility for the accident on the owners and the contractors, even if the accident wasn’t their fault. This is because they usually have both the absolute right and the ultimate responsibility to tell everyone on the job what to do to make sure that enough protection is given to men working at heights.

Why is This Law So Important to the Construction Worker?

Anyone who is hurt on a jobsite can usually get worker’s compensation benefits, but no one is allowed to sue their own employer. However, a worker can get compensation if they are hurt on the job, they have the right to an attorney if this happens. As the Spanish would say ‘abogado de compensacian laboral‘, we might be called different things in different countries, but we ultimately do the same thing. Many construction injuries are the fault of the worker’s employer, the fault of the worker, or some combination both. These situations leave you with no right to sue anyone – you get worker’s comp benefits and nothing else. The Scaffold Law, Labor Law, § 240(1), enables us to get you a recovery for the full value of your injuries, which is usually many times what your meager worker’s comp benefits would be. This is done by holding the owners and the contractors (except for your employer) responsible on the theory that they had enough control over the jobsite that they should have made sure that the working conditions were safer. Additionally, since your employer will usually have signed a hold harmless agreement, (which is an agreement to pay someone else back for damages that are legally required to be paid to the injured worker), your own employer’s insurance policy often kicks in. This allows us to recover through your employer’s insurance policy for your employer’s negligence in a roundabout way, even though we would never be allowed to sue your own employer directly. This law if a very powerful tool for the workingman’s lawyer, so every year, the construction and insurance industries pay their lobbyists huge sums of money to try to take it away.

Falls from Ladders, Scaffolds and Roofs:

The general rule is that construction accidents involving falls from ladders, scaffolds and roofs are covered by the law, and will result in absolute liability, but again, each case depends on its own facts, and we need to speak to you in detail to guide you about how the case should be developed.

What Kind of Work Do I Have to Be Doing for This Rule to Apply?

Before we get to the basic rule that the accident must be “elevation related”, we have to look at what kind of work was being done. The protected types of work include construction, demolition, alteration, repair and cleaning of a structure. Every word in that last sentence is argued over in the courts all the time. Many times this law can extend to alteration and repair that we would normally not think of as part of a construction job, for example, installing lights on a billboard, or unloading material from a truck to be used on a roofing job. Many examples like these, too numerous to mention here, have been held to be protected work under this law, but this will depend on the facts of each specific case. Many cases are disputed over whether the work being done is a repair, which is protected and covered by this law, or routine maintenance, which is not. “Cleaning” which is routine and generally involves insignificant elevation risks compared with ordinary household cleaning, and which is unrelated to construction, alteration or repair, will generally not be entitled to the protection of this law, Soto v. J. Crew, Inc., 21 NY 3d 562, 568 [2013], but many types of “cleaning” will be covered. Because every little facet of this law, (almost literally every word) is argued back and forth all the time, this has become its own specialized field of law. You should call us if you have any construction related or elevation related injury, even if it does not occur on a construction site. Trying to decide whether your accident is covered after reading material on the internet is like trying to diagnose your own illness after reading some medical literature. It’s Dangerous So Don’t Do It – Call and Ask Us.

The Work Must be Done on a “Structure”:

This is not limited to buildings, and has been held to include railroad cars, billboards, telephone poles, aircraft, highways, temporary freestanding shelving, and many other things that would not ordinarily come to mind as “structures”.

The Accident Has to be Elevation or Gravity Related:

The purpose of this special law was to make owners and contractors provide safe protective devaices to protect against gravity related risks either because of i) a difference between the elevation level of the required work and a lower level or ii) 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 N.Y.2d 509 [N.Y. 1991]. The most important question is whether the Plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a significant elevation differential, Runner v. New York Stock Exchange, 13 NY 3d 599, 603, [2009].

How High is the Height Differential? – This is a factor, but no one factor by itself will determine whether this law will apply or not. A fall of 6 to 8 feet will almost always be enough, where a fall of 1 or 2 feet usually will not, but there are always exceptions. For example, if a worker almost falls off a scaffold, but suddenly grabs something to keep from falling off an edge that is not protected, and tears a ligament in his shoulder, that’s usually good enough, even though he didn’t fall at all. If a worker is being hoisted in a harness and the hoist suddenly drops one foot, causing him to swing and hit a wall, that will be good enough because it involves a hoist that was not properly controlled.

Falling Objects:

Injuries caused by falling objects can often be covered under the Scaffold Law, Labor Law §240(1). If the object is being hoisted or secured, or it is required to be secured and falls because there is no safety device or because the safety device fails, it should be covered, Fabrizi v. 1095 Avenue of the Americas 22 NY3d 658[2014], rev’g 98 AD3d 864 [2012]. Falling objects at the same level where the injured man was working can be, but are not always covered, see, Wilinski v. 334 East 92ns St. Housing Development Fund Corp., 18 NY3d 1, [2011], Purcell v. Visiting Nurse’s Foundation, Inc., 127 AD3d 572, 573 [1st Dept. 2015] and Zimmer v. Town of Lancaster Industrial Development Agency 125 AD3d 1315, 1316.

How is it Decided Whether this Law Applies to My Accident or Not?

This decision is usually, but not always, made by a judge on a complicated set of papers, which is called a motion for summary judgment. Before we can do this, we have to obtain all the contracts and contract documents, change orders, progress reports, job photos, and various other paperwork. The defense attorneys will obtain all of the medical records, the worker’s compensation file, and numerous other records. The worker, the defense witnesses, and all other witnesses either side knows about will usually have to answer questions under oath with lawyers for both sides present. These are called depositions, or Examinations Before Trial (“EBT’s”). Each side then submits all their testimony, documents and legal arguments to the judge. We will ask for summary judgment in favor of the worker against the contractors and the owners, and the defense will ask that some or all of our claims be dismissed. The outcome can never be predicted, but whichever side loses has the right to appeal to another court, which is called the Appellate Division. If we win summary judgment on the Scaffold Law claim, Labor Law § 240(1), this means that the liability of the defendants is established, and that the trial will only be held to decide how much money the worker will get. If the judge rules that there is a “question of fact”, this means that the case has to go to the jury to decide whether the statute applies or not. If the judge rules in favor of the defendants and dismisses the Labor Law § 240(1) claim, the case will usually proceed to trial on the remaining claims. . Please refer to the Other Construction Accidents page for a discussion of other types of claims we can make in construction accidents.

What if Summary Judgment is Granted in My Favor, But the Accident was Partially My Fault?

The beauty of getting summary judgment under the Scaffold Law, Labor Law, § 240(1), is that the defendants cannot use your own fault against you to reduce your recovery. In other types of cases, the defense will always argue that the accident was partially your fault, and that the amount of money the jury awards is reduced by whatever percentage of fault the jury assigns to you, the worker. If summary judgment is granted in your favor on Labor Law § 240(1), absolute liability attaches, and the defendants are 100% liable. They are not even allowed to argue to the jury that you had any fault in causing the accident.

What Happens if My Accident is Not Height Related?

If your accident is not height related, or you do not have a Scaffold Law § 240(1) Claim, there are still plenty of remaining options as to how the case can be brought. Please refer to the Other Construction Accidents page for a discussion.

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