Court of Appeals Repudiates Labor Law § 240(1) “Same Level” Precedent and Construes a Labor Law § 241(6)-Triggering Regulation

In Wilinski v. 334 East 92nd Housing Development Fund Corp., 2011 NY Slip Op 07477 (Oct. 25, 2011), the New York Court of Appeals vitiated the so-called “same level” rule that had embedded itself in New York Labor Law § 240(1) jurisprudence, and construed a Labor Law § 241(6)-triggering regulation.

P, who was engaged in the demolition of brick walls at a vacant warehouse, was injured when two vertical pipes, which rose from the floor to about ten feet, fell (after being hit with debris) and struck him. P sued, alleging violations of Labor Law 240(1) and 241(6).

Labor Law § 240(1)

The Court of Appeals disagreed with the Appellate Division to the extent it relied on the “same level” rule, which “calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff.” Such a categorical rule was improper, as it conflicted with the Court’s more recent decisions. “[T]he single decisive question” in a 240(1) case “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”. Here, the height differential was not insignificant as a matter of law, where the pipes fell at least four feet before striking P. However, neither party was entitled to summary judgment on P’s 240(1) claim, since “[w]hether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.”

Labor Law § 241(6)

1. 12 NYCRR § 23-3.3(b)(3)

P’s first 241(6) claim was based on 12 NYCRR 23-3.3(b)(3), which provides:

“Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.” (Emphasis added.)

D argued that this regulation did not apply here, because “neither wind pressure nor vibration caused the pipes to fall, collapse or become weakened.” The Court disagreed, and adopted the Appellate Division’s interpretation, namely, that the phrase “by wind pressure or vibration” does not modify the words “fall” or “collapse”. P was thus “not required to show that the pipes fell or collapsed due to wind pressure or vibration to state a claim under” the regulation.

2. 12 NYCRR § 23-3.3(c)

P’s second § 241(6) claim arose under 12 NYCRR § 23-3.3(c), which provides:

“During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.”

“The thrust of this subdivision is to fashion a safeguard in the form of continuing inspections, against hazards which are created by the progress of the demolition work.” The Court held, without analysis, that D failed to meet their burden of showing either that they complied with the regulation or that their non-compliance did not cause P’s accident.

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