On September 14th, the Court of Appeals granted leave to appeal in Avila v. Plaza Construction Corp. In Avila, the plaintiff was standing on top of the rebar grid when he picked up a hose used in the pouring of concrete. As he disconnected two sections of the hose, concrete inside of the section he was holding suddenly shifted, and one of the iron clamps recoiled and hit him in the head, causing him to lose his balance and fall down. When the plaintiff fell, his body landed on the rebar, but his right leg fell approximately three feet down into one of the openings, and he fractured that leg.
The Second Department held that the defendants established their prima facie entitlement to judgment as a matter of law on the plaintiff's Labor Law § 240(1) claim because “the openings of the grid, which were clearly not of a dimension that would have permitted the plaintiff's body to fall through and land on the dirt floor below, did ‘not present an elevation-related hazard to which the protective devices enumerated’ [in Labor Law § 240(1)] are designed to apply. ’” Since the plaintiff failed to raise a triable issue of fact, the Court reversed, thereby granting that branch of the defendants' motion for summary judgment on the Labor Law § 240(1) claim.
This now marks the fifth Labor Law § 240(1) case that has been granted leave to appeal to the Court of Appeals since the beginning of July. The other four cases are Salazar v. Novalex Contr. Corp.; Strangio v. Sevenson Environmental Services, Inc.; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp.; and Ortiz v. Varsity Holdings. Furthermore, the First Department has issued three recent 3-2 decisions on Labor Law § 240(1) (Ramirez v. Shoats; Makarius v. Port Authority of New York and New Jersey; Lombardo v. Park Tower Mgt. Ltd).
Its probably safe to say that maybe its time to take a step back and consider whether the current splitting hairs approach to deciding these cases is the best approach. Should whether Labor Law § 240(1) applies really come down to whether the plaintiff fell from 18 inches or four feet? While its good that many of these issues are coming to a head, and hopefully will be resolved, if Runner is any indication, the next pronouncement by the Court of Appeals might just add more fuel to the fire.