Tuesday, August 21, 2012

Third Department refuses to extend Labor Law 240 to object at ground level

In Oakes v. Wal-Mart Real Estate Bus. Trust 2012 NY Slip Op 05694, Decided on July 19, 2012, Appellate Division, Third Department, plaintiff sustained serious bodily injury when he was struck by a building truss at ground level.  Finding that plaintiff was exposed to the ordinary dangers of a construction site and not the extraordinary elevation risks, the appellate court refused to extend Labor Law section 240(1) to these facts.  Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, however, there was no elevation differential present here, let alone a "physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d at 603). 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. Plaintiff's injury occurred after the truss was rendered unstable by an object that hit it horizontally — the bar joist, which shifted sideways on the forklift and pushed the truss into plaintiff (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005], supra). Under these circumstances, plaintiff was exposed to "'the usual and ordinary dangers of a construction site, and [not] the extraordinary elevation risks envisioned by Labor Law § 240 (1)'" (Ortiz v Varsity Holdings, LLC, 18 NY3d at 339, quoting Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d at 843; accord Toefer v Long Is. R.R., 4 NY3d at 407; see Narducci v Manhasset Bay Assoc., 96 NY2d at 269-270; Melo v Consolidated Edison Co. of N.Y., 92 NY2d at 911; Davis v Wyeth Pharms., Inc., 86 AD3d at 908-910; Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274, 1275 [2011]; cf. Kropp v Town of Shandaken, 91 AD3d 1087, 1089-1090 [2012]). Accordingly, Supreme Court properly dismissed plaintiffs' Labor Law § 240 (1) claim.