In Cassidy v. Highrise Hoisting and Scaffolding, Inc., the plaintiff fell 4 to 5-feet from a temporary loading dock at a building under construction. When not in use, a rail was in place across the loading dock. As a delivery was received, the rail would be removed. When the delivery was concluded, the rail would be replaced. Plaintiff leaned against the rail which came loose, causing him to fall. The First Department affirmed summary judgment to plaintiff, holding that his injuries were gravity-related and were the result of a failure of a safety device -the rail- which was intended to protect workers from falling.
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Interestingly, the First Department clearly found, without discussion, that a 4 to 5-foot height differential is sufficient to invoke the protections of Labor Law 240(1). The Court of Appeals recently heard Argument in Ortiz v. Varsity Holdings, LLC, which involved, in part, a question as to whether a 6-foot fall from a dumpster was sufficient to invoke 240(1) liability. Follow this blog for an update on the Ortiz matter.
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