The Appellate Division of the Supreme Court of New York recently reversed a Supreme Court of New York, New York County decision in which it contemplated whether elevation risk analysis under N.Y. Labor Law § 240(1) applies to a cave-in related accidents at a below-grade excavation. In Rivas v. Seward Park Housing Corp., 195 N.Y.S. 3d 188 (App. Div. 2023), Plaintiff was a laborer employed by an excavation subcontractor hired to dig a trench in order to ascertain whether the defendant property owner’s external water pipes were leaking. As Plaintiff and his coworkers reached the water pipes 12-feet below the surface, the hand-dug trench collapsed and buried Plaintiff thereby causing his injuries.
As a result of the incident, Plaintiff brought suit against various parties including the property owner, contractor, and subcontractor of a construction project. Plaintiff’s Complaint alleged a violation of N.Y. Labor Law § 240(1) for the lack of adequate shoring along the trench walls, which Plaintiff claimed would have prevented the cave-in.
N.Y. Labor Law § 240 is known commonly as the “scaffold law” and states, in relevant part:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Countering Plaintiff’s allegation of the lack of shoring, defendant contractor’s foreman recalled that plywood shoring was used in the subject trench and was continuously moved as the project progressed. The foreman also disputed the depth of the trench and noted that it was only six feet deep as opposed to Plaintiff’s allegation that the trench was twelve feet deep.
Relying on Labor Law § 240(1), Plaintiff moved for Partial Summary Judgment as to the issue of the liability of all defendants. In so moving, Plaintiff’s motion was supported by deposition testimony and expert opinions that both claimed that the makeshift shoring was inadequate to protect Plaintiff from the elevation-related hazards posed by the trench. Defendant property owner and defendant contractor filed cross-motions for Summary Judgment, arguing that Labor Law § 240(1) did not apply to cave-in cases.
The Trial Court granted Defendants’ cross-motions for Summary Judgment on the grounds that a cave-in at an excavation site does not present an elevation-related risk within contemplation of Labor Law § 240(1). In so reasoning, the Court cited past Appellate Division opinions as support.
On appeal, Plaintiff contended that Labor Law § 240(1) should apply to situations where an individual is working below surface grade and a lack of protection results in objects falling from above due to improper securing of the below surface grade site. Plaintiff highlighted the severe elevation difference between the depth of the trench and the top of the trench wall that collapsed causing the subject injuries. Plaintiff argued that this height differential required some sort of safety device above and beyond the inadequate shoring used on the date of the incident.
Having heard Plaintiff’s reasoning, the Appellate Division found that even viewing the facts most favorable to defendants, there was a palpable, non-de minimis height differential at the time of the accident. The Court noted that there was more than one foot of space between the top of Plaintiff’s head as he knelt in the trench and the top of the trench wall, which it believed was a significant height differential. For this reason, the Appellate Division agreed that the trench wall needed a shoring device to protect Plaintiff in light of this height differential. The Court did not agree with the defendants’ argument that a cave-in was a normal construction site danger and instead reasoned that Plaintiff’s injuries were a direct result of the elevation-risk cited by Plaintiff.
For these reasons and others stated on the record, the Appellate Division found that the defendant property owner and contractor failed to adequately protect Plaintiff from a reasonably preventable gravity-related accident. Therefore, the Court found the defendants to be liable under Labor Law § 240(1). In so deciding, the Appellate Division expanded the scope of Labor Law § 240(1) protections beyond height related incidents and into depth related incidents.
