Recent Developments On The “Same Level Rule” And New York Labor Law 240(1)
New York Labor Law § 240(1), commonly referred to as the Scaffold Law, provides that “all contractors and owners and their agents, except owners of one and two-family dwellings who contract for, but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”
“The Court of Appeals has often observed that the purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs, on the owners and general contractors, instead of on the individual workers who are not in a position to protect themselves.” Martinez v. The City of New York, 93 N.Y.2d 322, 325 (1999). Indeed, consistent with this principle, the Court of Appeals has stated that “the statute places absolute liability upon owners, contractors, and their agents for any breach of the statutory duty which has proximately caused injury and, accordingly, it is to be construed as liberally as necessary to accomplish the purpose for which is framed.” Panek v. County of Albany, 99 N.Y.2d 452, 457 (2003).
B. Wilinksi and the Same Level Rule
It is against this seemingly foreboding backdrop that defendant owners and general contractors would sometimes rely on the “same level” rule in the context of defending New York Labor Law § 240(1) claims. This theory of defense held that Labor Law § 240(1) was not applicable to circumstances where a worker sustained an injury caused by a falling object whose base stands at the same level as an injured worker. Unfortunately, the application of this rule in New York State courts was maddeningly inconsistent and so fact intensive as to be unwieldy. See Bailey v. Benderson, 255 A.D.2d 927 (4th Dep’t 1998) (“Because one end of the ladder, which struck plaintiff, had been at ground level and plaintiff was walking at ground level, the ladder did not constitute a falling object nor did plaintiff’s work involve an elevation-related risk encompassed by Labor Law § 240(1)”). Conversely, See Brown v. VJB Construction Corp., 50 A.D.3d 373, 377 (1st Dep’t 2008) (“It was of no consequence that the ultimate destination of the slab that impacted plaintiff was on the same level where the plaintiff was standing.”)
Indeed, the New York Court of Appeals clarified this issue, albeit seemingly to the detriment of defendants, in the relatively recent case of Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.2d 1 (2011). In Wilinski, plaintiff was injured when demolishing brick walls at a vacant warehouse when pipes whose base were on the same level as plaintiff toppled over and impacted him. “Previous demolition of the ceiling and floor above had left two metal, vertical plumbing pipes unsecured. The pipes were each four inches in diameter and rose out of the floor on which plaintiff was working to a height of approximately ten feet. The pipes were to be left standing until their eventual removal. Earlier that morning, plaintiff voiced concerns to his supervisor that leaving the pipes standing during demolition of surrounding walls could be dangerous. Nevertheless, no safety measures were taken to secure the pipes. Shortly thereafter, debris from a nearby wall that was being demolished hit the pipes, causing them to topple over. The pipes fell over approximately four feet and landed on the plaintiff, who is 5’6”.” Id., at 5.
The Court of Appeals ultimately held “that plaintiff is not precluded from recovery under Section 240(1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood approximately 10 feet and toppled over to fall at least four feet before striking plaintiff, who is 5’6” tall. That height differential cannot be described as de minimis given the “amount of force were able to generate over their descent.” Id., at 10.
Thus, the Court of Appeals in Wilinski clarified prior court decisions by ruling that the fact an injured worker and the base of the object device that impacted him were on the same level would not serve as a categorical bar from the imposition of Labor Law § 240(1) in falling object cases. What would be dispositive, however, is “whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Id., at 10.
Given the above analysis, however, the potentiality for accidents that could be encompassed by Labor Law § 240(1) would be greatly increased. Consider if an object fell or even tipped over on a plaintiff that was only several inches higher than plaintiff, but was of great weight? It would seem that the courts could entertain, with obvious prodding from plaintiffs’ lawyers, that such cases could come within the ambit of Labor Law § 240(1). Indeed, this gravitational analysis would seem to support the contention that a very heavy object would not have to fall very far for Labor Law § 240(1) to apply. This more expansive view of Labor Law § 240(1) is troubling to say the least.
C. The status of the same level rule post Wilinski and the Oakes decision
Indeed, our office was faced with just such a scenario in the matter of Oakes v. Wal-Mart Real Estate Business Trust, 2012 N.Y. App. Div. Lexis 5614 (3rd Dep’t 2012). In Oakes, plaintiff was injured when a truss that was upright and on ground level tipped over and impacted plaintiff who was also on ground level. “The falling object was a 10,000-pound truss that had been set upright but remained on the ground in preparation for placement into the building structure. Plaintiffs allege that the truss “tipped over and fell” after it was struck by the bar joist being carried by a forklift, and that the truss hit plaintiff in the shoulder on its way down, knocking off his helmet and pushing him into an adjacent truss, which also fell. The truss that knocked plaintiff down as it fell, generated sufficient force as to cause severe injuries, including, crushing plaintiff’s legs.” Id. at 15, 16.
While our office was successful in getting plaintiff’s Labor Law § 240(1) cause of action dismissed in the lower court, plaintiff then appealed this decision to the Appellate Division, Third Department on the grounds that the Wilinski decision, which was decided after plaintiff’s Labor Law 240(1) claim was dismissed, warranted a reversal of this decision.
Citing Wilinski, plaintiff argued “that a physically significant height differential was present-despite that fact that the truss and plaintiff were both at the same level and the same height, because the operation of gravity on the truss caused plaintiff to be injured.” Id. at 15.
Notably, this argument was flatly rejected by the Third Department. Indeed, the court noted that “it cannot be said that an elevation differential posed the special elevation risks contemplated by the statute simply because the force of gravity acting on a heavy object caused serious injuries when the object fell.” Id. The Court held that “Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to force of gravity, however, there was no elevation differential present here, let alone a physically significant elevation differential. The truss and plaintiff were both at ground level and they were either approximately the same height or plaintiff was slightly taller than the truss.” Id. at 15, 16. Further, while not noted in the decisions, plaintiff’s arguments that the distance of the alleged “fall”, should be measured in the context of the arc of the object was also apparently not given any weight by the court.
While the precedential weight of the decision in Oakes is limited to cases emanating from within the Third Department, it is worthwhile to note that it appears that New York State courts will still require some element of a “physically significant elevation differential” before the imposition of Labor Law § 240(1), even in cases where the falling object is of significant weight. It remains to be seen if the court will establish a bright line rule regarding the weight and height of a falling object in considering the applicability of Labor Law § 240(1)and future decisions will be telling on this issue. As such, it appears that any Labor Law § 240(1) analysis will be necessarily fact intensive and will require careful consideration of all salient facts as this area of law is in a constant state of flux.