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Labor Law 240 Applied Expansively to Fallen Fence Post

October 2, 2008

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New York's Labor Law Section 240 has been a troublesome statute for defendants. At times, its reach appears nearly limitless. Such is the case of <i>Romero v. Trump Apartments</i>. In <i>Romero,</i> plaintiff was employed as a day laborer who was assisting in the removal of a perimeter chain link fence. Standing on the ground, he held up the fence's horizonal top frame, which was about 8 feet off the ground. During a mishap, this metal post became unmoored, falling less than 3 feet to strike plaintiff on the head.
Two issues confronted the court. First, was plaintiff engaged in work protected by Section 240? Second, did the accident involve an "elevation-related" risk bringing it within the scope of Section 240? Not surprisingly, the motion court held that the demolition of a fence triggered Section 240 because it involved the demolition of a "structure." Further, although being struck by a falling object can trigger a Labor Law claim, the court ruled that a pipe falling 33 inches is not a de minimus distance. So much for the statute being limited to falls from a scaffold, ladder or a height. The practical effect was that plaintiff was granted summary judgment and the defendant was stripped of its right to claim that plaintiff was comparatively negligent to any degree.
Our advice is simple. Never underestimate the scope of Section 240 of the Labor Law. Its reach is expansive and the effect of its application ominous: a breach of the statute results in strict liability and the defendant cannot argue that plaintiff was comparatively negligent. The goal for owners and general contractors is to shift liability to those contractors who were responsible for directing, supervising, and controlling the activities that led to plaintiff's injuries.
<a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_51887.htm">http://www.nycourts.gov/reporter/3dseries/2008/2008_51887.htm</a>

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