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Add Mud To The List Of Dangers Covered Under Labor Law 240(1) (NY)

December 4, 2020

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The First Department has previously held that Labor Law 240(1), which provides strict liability protecting plaintiffs against gravity-related risks, applies if a worker standing on a platform on the surface of a body of water falls into that body of water. <em>See</em>, <em>Pipia v. Turner Constr. Co.</em>, 114 A.D.3d 424 (1<sup>st</sup> Dep’t 2014), <em>lv dismissed</em> 24 N.Y.3d 1216 (N.Y. 2015). In a recent case where the plaintiff was injured stepping onto an area of ground that had previously been excavated and then backfilled with soil, the First Department extended the <em>Pipia</em> line of reasoning and held that the plaintiff’s accident was also covered by Labor Law 240(1).

In <a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Sunun-v-Klein.pdf">Sunun v Klein</a>, an early stage of the subject construction project involved excavating an area of ground to create a trench which was then backfilled with soil. No barriers or signage were implemented to cordon off this filled trench after it was backfilled. Plaintiff was working on a later date and stepped on that area of ground, and he unexpectedly sunk such that his leg was in the ground up to his mid-thigh. It was undisputed in discovery that there were no safety devices provided to protect plaintiff or any other workers from the gravity-related risks of descending into the trench if they were to walk on it, and plaintiff’s expert testified that the trench had been filled with soil that was insufficiently dense which created a risk of such accidents. Discussing the previous <em>Pipia</em> decision, the First Department held that the elevation differential between the ground level and the lower level to which the plaintiff’s foot and leg sank was analogous to the risks presented when a worker stands on a floating platform on a body of water without safety devices to prevent him from falling into the water. As such, the First Department reversed the motion court and granted plaintiff’s motion for partial summary judgment on the Labor Law 240(1) claim.

Thanks to Shira Straus for her contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.

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