Category Archives: Construction

APPELLATE DIVISION DECIDES AGAIN WHAT CONSTITUES AN ELEVATION RELATED HAZARD FOR LABOR LAW 240 LIABILITY

Labor Law §240 was originally intended to protect workers performing tasks at an elevated height, for example on scaffolding or ladders, by requiring the use of certain enumerated safety devices. Over the years, New York Courts have expanded the original scope of this law to include injuries from falling objects as well as certain falls occurring at ground level.
One of the many issues in §240 litigation is whether falling into depressions or holes at ground level constitutes an elevation related hazard. There is a recent case from the Fourth Department on this issue.
In Wrobel v. Town of Pendleton, 120 A.D.3d 963 (4th Dep’t 2014), plaintiff alleged that while working on a construction project, he was walking at ground level and fell into a four foot deep hole which was filled with water, sustaining personal injuries.
The question on appeal was whether the hole into which Plaintiff fell constituted an elevation related risk, thereby triggering §240 strict liability. The hole was naturally occurring at the site, not part of the construction excavation.
The Appellate Division reversed the lower court , and held that Labor Law 240 is not applicable to incidents that occur as a result of someone walking into holes at ground level, as the injuries are not attributable to the failure to provide safety devices. The incident does not constitute an elevation related hazard within the meaning of the statute. The Court distinguished between holes created during construction, where safety devices would be required, and where Labor Law 240 liability would be triggered, and those that are naturally occurring where safety devices would not be required.
The Court did not really discuss the ever popular ‘elevation-related ‘ issue, just whether the condition was created or pre-existing, in the fashion that premises cases are evaluated.
You would think this would be obvious, but not when you are taking about the fertile ground of Labor Law 240 litigation.