New York Labor Law § 240(1) is a formidable statute that, when applicable, holds “contractors and owners and their agents” absolutely liable for certain injuries sustained by construction workers.
The statute’s reach, however, is not absolute. By its terms, Labor Law § 240(1) affords protection to workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” (Emphasis added.) A recent decision, Cicchetti v. Tower Windsor Terrace, LLC, 2015 NY Slip Op 04375 (App. Div. 3d Dept. May 21, 2015), reinforces that trees are not “structures” within the meaning of the statute.
In Cicchetti, plaintiff was employed by a company hired to perform tree-removal services. At one point, plaintiff’s boss began cutting sections of the trunk and allowing them to fall to the ground. Plaintiff passed under the area where his boss was cutting the tree, just as his boss cut off a section of the trunk. The falling chunk of wood struck and injured plaintiff (who, ironically, couldn’t hear his co-workers’ warnings because he was wearing ear protection).
Plaintiff sued, alleging violations of Labor Law §§ 240(1) and 241(6). The court affirmed the dismissal of plaintiff’s 240(1) claim, reasoning that “[u]nder settled case law, a tree does not qualify as a building or structure, and — generally speaking — neither tree removal nor tree cutting constitutes one of the enumerated statutory activities.”
It was also irrelevant that fence removal was on the horizon. While 240(1)’s “statutory protections extend to duties that are ancillary to the enumerated activities set forth therein, [it] afford[s] no protection to a plaintiff [who is] injured before any activity listed in the statute [is] under way.” Here, since “the work undertaken by plaintiff’s employer was not performed contemporaneously with the third-party contractor’s [removal of the fence] and fell into a separate phase easily distinguishable from other parts of what plaintiff contended was a larger landscaping project, plaintiff was not — at the time of his accident — performing duties that were ancillary to a Labor Law § 240(1) activity.”