Wednesday, November 23, 2011

Court of Appeals Holds Sect. 240(1) Does Not Apply When the Allegedly Necessary Safety Device Would Defeat the Objective of the Work to be Performed

In Salazar v. Novalex Contracting Corp., 2011 NY Slip Op 08446, a majority of the Court of Appeals dismissed this Labor Law action where the plaintiff was injured stepping into a trench that was “between 3 and 4 feet deep.” The plaintiff stepped backwards or fell into the trench while raking wet concrete to fill and level the floor, including filling the trench at issue. The trench was partially filled with concrete when the plaintiff was injured.

In this 4-3 decision, the majority concluded that under a “common sense approach,” it would be “contrary to the objectives of the work plan” for an owner or general contractor to cover or barricade trenches where the job was to spread concrete and fill them. The claim under Labor Law § 241(6) was rejected on substantially similar grounds. Since filling the trench was an “integral part of the job,” a building code provision about installing safety railing or fastening covers at hazardous openings should not apply.

By contrast, the dissent would have denied summary judgment on both claims. The dissent argued this was “precisely” the type of case to which 240(1) would apply and that there was no reason why the building code about hazardous openings should not apply. With respect to both of the majority’s conclusions, the dissent claimed that questions of fact exist because the record was not clear about whether the trench was “purposely being filled at the time,” or that “seepage [into the trench] was intentional.” The dissent reasoned that even if the court were to assume that the trench was being purposely filled, the case should go to a jury after testimony by “experts on construction techniques,” to decide whether the plaintiff could be protected while also filling the trench.

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