First Department Departs From The Remainder of The Appellate Divisions to Find 240(1) Liability For Fall From "Passageway"

In Auriemma v. Biltmore Theatre LLP, the plaintiff, who was assigned to install electrical conduit in a building, was injured in a fall from a plank that was being used by workers to enter an excavation trench. The plaintiff had planned to cross the trench by walking down the plank, crossing the trench to a ladder on the other side and then ascending the ladder back to the ground floor. The plank gave way and the plaintiff fell to the bottom of the trench. The plaintiff was not performing work in the trench.

In holding that the plaintiff was entitled to partial summary judgment on liability pursuant to Labor Law 240(1), the First Department rejected the defendant's argument that 240(1) did not apply because the plank was a passageway. In so holding, the decision of the First Department is in conflict with the remainder of the Appellate Division (and its own prior precedent, see Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 [1st Dept. 1983] [an accident arising on “a passageway does not lie within the purview of section 240(1)”]).

For example, in Paul v. Ryan Homes, Inc. (5 A.D.3d 58 [4th Dept. 2004]), the plaintiff, a painter, attempted to enter a house under construction by using an unsecured plank. The plank tipped, causing him to fall to the concrete floor. The Fourth Department held that 240(1) did not apply because the plaintiff “used the plank as a passageway to enter the house, and there is no evidence in the record before us that the plank was used as a scaffold, ladder or other device enumerated in the statute” (id. at 61) . In other words, the plank was not a tool used in the performance of the plaintiff’s work, but rather was “merely a passageway from one place of work to another” (id.).

Similarly, in Donohue v. CJAM Associates, LLC (22 A.D.3d 710, 711-712 [2nd Dept. 2005]), the plaintiff fell from a ramp which provided access to the building where he was working. The Second Department held that “[t]he ramp from which the injured plaintiff fell was not being utilized in the performance of his work in the building under construction, i.e., it was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work. Rather, it was used as a passageway for laborers at the work site and, as such, did not come within the purview of Labor Law § 240(1)” (id. At 711-712).

In Straight v. McCarthy Bros. Co. (222 A.D.2d 775 [3rd Dept. 1995]), the plaintiff, a steamfitter/plumber, was injured at a construction site when he fell from a plank while entering the building where he was working and sustained injuries. The Third Department held that “the plank was not being utilized in the performance of Straight’s work in the building under construction, i.e., it was not being utilized as a ladder, scaffold, hoist or other safety device for the benefit of Straight in his work as a plumber. Rather, it was used as a passageway for laborers to transport materials and debris at the work site and, as such, did not come within the purview of Labor Law § 240(1)"(id. at 776).