In a decision issued on March 29, 2012, the Appellate Division, First Department, held in Ortega v. City of New York that, in a Labor Law § 240(1) case – here, arising from plaintiff’s use of a “tremie rack” (example pictured) – “a plaintiff is not required to demonstrate that the injury was foreseeable, except in the context of a collapse of a permanent structure” and that “[o]utside the permanent structure collapse context, a plaintiff simply needs to show that he or she was injured while engaged in a covered activity, and that the defendant’s failure to provide adequate safety devices of the type listed in Labor Law § 240(1) resulted in a lack of protection”.
The court held that there was “no need for plaintiff to submit expert testimony on foreseeability or otherwise establish that the accident was foreseeable as part of his prima facie case”. It thus reversed the lower court’s denial of summary judgment to plaintiff, and held that the motion should have been granted.
The court described plaintiff’s injury – which occurred while plaintiff was working on the Second Avenue Subway Tunnel Construction Project – as follows:
[P]laintiff stood on a work platform located eight feet above the ground and contained within a metal cage known as a tremie rack. This was a rectangular structure, approximately 12 feet high. In addition to housing a work platform, the tremie rack contained vertical slots in which heavy tremie pipes were held. These pipes had a collar at one end and were kept in place by square shaped holders referred to as “keepers.” The rack was resting on unsecured wooden planking that was meant to level the gravel surface below. Plaintiff was ejected from the platform when the collar of a tremie pipe that was being hoisted by a multi-ton rig got caught on the keeper, and caused the tremie rack to tip over onto its side.
The court declined defendant’s invitation to extend the “limited foreseeability requirement beyond the confines of permanent structures … that are not safety devices by their nature” and to “burden plaintiffs with expert testimony showing that the precise nature of the accident was foreseeable as part of his prima facie case even though the tremie rack where the accident occurred was clearly not a permanent structure.” Reading this requirement into the statute “would go directly against the legislative intent [of the Labor Law].”
The court went on to explain the impact of this determination on Mr. Ortega’s claims:
[I]n the present case, a device precisely of the sort enumerated by the statute was not “placed and operated” as to provide adequate protection to plaintiff … . The tremie rack, which was taller than it was wide, was not in a fixed position, but rather, rested upon wooden planks atop an uneven, gravel surface. Plaintiffs made out a prima facie case in that they established with evidence in admissible form that plaintiff … was working at a construction site and was injured as the result of the gravity-related hazard created by the elevation differential of the tremie rack in which plaintiff was working, and that the rack, which should have been secured to the ground, but was not, failed to protect him. Indeed, here, unlike [a case] where the plaintiff failed to demonstrate that protective devices could have prevented the accident, plaintiffs submitted testimony indicating that the accident could have been prevented had the tremie been secured to the ground[.]
After thus concluding “that foreseeability is a non-issue in establishing Labor Law § 240(1) liability in this case”, the court nevertheless went on to state that “if foreseeability were a required element, plaintiffs have nevertheless demonstrated their entitlement to partial summary judgment as to liability on the Labor Law § 240(1) claim”. This was because “[i]t was foreseeable both that the plaintiff could fall off the elevated work platform and that the entire tremie rack could topple over because the tremie rack on which plaintiff was working was a mobile, elevated work platform that … was taller than it was wide and rested upon wooden planks atop an uneven, gravel surface.”