Sunday, August 22, 2010

Court of Appeals Watch

In April we reported on Salazar v. Novalex Contr. Corp., a Labor Law 240(1) and 241(6) action for injuries sustained when the plaintiff stepped backward into a four foot deep trench in a basement. The First Department reversed the trial court's grant of summary judgment to the defendants and reinstated claims under both statutes, with Judge Friedman dissenting. The First Department has now granted leave to appeal to the Court of Appeals.

With respect to Labor Law 240(1), the majority followed its prior decision in Carpio and concluded that the accident was gravity related because it was created by "the 'difference between the elevation level of the required work' . . . and 'a lower level.' " The Court then distinguished its holdings in Romeo and Geonie, as well as the Court of Appeals holding in Rocovich v. Consildated Edison Co. (78 N.Y.2d 509 [1991]) stating that in "each of these cases the dimensions of the opening in the floor were not sufficiently significant that the worker could be said to have been working at an elevation." In each of those cases the depth did not exceed two feet.

The majority further held that the plaintiff's claim fell within the meaning of "hazardous opening" within 12 NYCRR 23-1.7 and that there was no proof that the trench had to remain open in order to do the work.

The dissent argued that the majority's holding was inconsistent with prior decisions within the Department, the other three Appellate Divisions and the Court of Appeals holdings in Rocovich and Toefer (finding no liability under Labor Law 240[1] where a worker fell four to five feet from the trailer of a flatbed truck). The dissent called for Carpio to be overturned arguing that the defendants did not violate Labor Law 240(1) because none of the safety devices contemplated by the statute could have prevented the accident. Furthermore, the dissent argued that there should be no liability under Labor Law Sec. 240(1) and 241(6) where the injury producing activity was an integral part of the work. In that regard, the dissent sharply disagreed with the majority's characterization of the work being performed and whether the trench could have been covered.

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