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Separating Elevations Risks Under Labor Law § 240 (1) From Other Conditions That Could Cause an Employee’s Injury

By: Erika Vasant, Law Clerk
Editor: Patrick J. Graham, Esq.

In Schutt v. Dynasty Transp. of Ohio, Inc., 203 A.D.3d 858 (2022), the Supreme Court of New York, Appellate Division, Second Department reaffirmed the State’s current understanding of Labor Law §240(1). In this case, plaintiff, an elevator assembly employee, was unloading the components of an elevator from a truck. As plaintiff was attempting to move a hydraulic jack, his foot slipped and he fell down two feet from the truck bed injuring his shoulders and back. When plaintiff stood up, he noticed that an oily substance was on his clothes, which he determined to have originated from the truck’s bed.

Plaintiff filed a complaint alleging violations of Labor Law §240(1) and §241(6) as well as negligence by the defendants. The Supreme Court, however, granted all the defendants’ motions to dismiss, and the plaintiff appealed.

The Appellate Division first referenced the notes in Labor Law Section 240(1) which states:

Labor §240(1) should apply only to circumstances where there are risks related to elevation differentials since types of devices which statute prescribes (ladders, scaffolds, etc.) share common characteristic related to relative elevation at which task must be performed or at which materials or loads must be positioned or secured.

As such, the Court reasoned that if plaintiff’s injury resulted from an elevation risk, but the fall was actually caused by spilled oil, the fall would constitute a separate hazard. Leaning on the Court of Appeals of New York’s decision in Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (N.Y. 2015), the Court noted that “regardless of the type of safety device involved, liability arises under Labor Law §240(1) only where the plaintiff’s injuries are the ‘direct consequence’ of an elevation-related risk not a separate and ordinary tripping or slipping hazard.”

Prior to Nicometi, the Court of Appeals held that “…the question is whether the circumstances surrounding plaintiff’s work subjected him to the sort of risk which Section 240(1) was intended to obviate.” Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (N.Y. 1991). In analyzing both Nicometi and Rocovich the Court affirmed that Labor Law §240(1) only applied to injuries caused by elevated surface differentials.

Nonetheless, the Court did not dismiss the claims against the same defendants regarding the causes of action relating to Labor Law Section 241(6) based on 12 NYCRR 23-1.7(d). The law bars employers from allowing employees to “use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” N.Y. Comp. Codes R. & Regs. tit. 12 §23-1.7 (2021). In this case, the Court found that the defendants did incur liability by allowing Plaintiff to perform his work in the truck amidst spilled oil.

Fundamentally, this case continued Labor Law §240(1) preference for employers because liability is only incurred when the injury stems from a device that creates elevation risks. If an injury stems from any other type of object that has no elevation risk, then employers are exempt from liability. Even so, employers must remain careful so as to not permit employees to perform their work in slippery conditions in order to avoid violating 12 NYCRR 23-1.7(d).

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Erika Vasant is one of Capehart Scatchard’s 2022 Law Clerks. Ms. Vasant is a rising 3L at Rutgers Law School. She has played an active role in diversity as President of the South Asian Law Students Association. Currently, she is President of the Rutgers Employment and Labor Law Association, Vice President of the Animal Legal Defense Fund, and the Notes and Comments Editor for the Women’s Rights Law Reporter. Last summer, she interned with the Honorable Judge Younge in the United States District Judge for the Eastern District of Pennsylvania. She is incredibly honored to be interning at Capehart Scatchard this summer!

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