On October 21st, we posted about the Court of Appeals decision in Gasques v. City of New York, a Labor Law case. In Gasques, the plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.”
The Court, however, would subsequently find in Strangio v. Sevenson Envtl. Servs., Inc., that a question of fact existed as to whether defendants provided proper protection under Labor Law § 240(1) in a case involving the “unchecked descent” of a scaffold. Although the plaintiff was not injured by falling from the scaffold or by the fall of the scaffold itself, he was struck in the face with the handle of the scaffold’s hand-operated hoisting mechanism. Arguably, the fall of the malfunctioning scaffold caused or contributed to plaintiff’s injury and thus was directly related to the application of the force of gravity to the scaffold.
A distinction to be made between the two cases is that the scaffold in Strangio did not function as intended, causing an “unchecked descent.” By contrast, the scaffold in Gasques functioned as intended and the effects of gravity were not implicated.
Notably, in Gasques the plaintiff had also asserted a Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.” According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”
The Court of Appeals then subsequently held in Nostrom v. A.W. Chesterton Co., that claims of vicarious liability under Labor Law § 241(6) may not be predicated on any of the regulations contained in part 12 of the Industrial Code, unless they are expressly incorporated into part 23 of the Industrial Code.