Morris v. Pavarini Constr.: The Court of Appeals’ Final Decision

In Morris v. Pavarini Constr., it was alleged by plaintiff that he was injured by a “form” object within the meaning of Industrial Code 23-2.2[a], that had not been properly braced.  Although the object that fell was one panel of what would make up a two panel “form,” plaintiff argued that it nevertheless qualified as a “form” under the Code.  The Appellate Division initially dismissed the plaintiff’s case in 2006, with the reasoning that the Industrial Code did not apply since the form was “in the process of being created.”

Thereafter, plaintiff appealed to the Court of Appeals.  The Court declined to render an interpretation of the Code, as it believed that there was not sufficient information in the record to do so.  As such, the matter was remitted in order to develop a more appropriate record in regards to whether “the words of the regulation can sensibly be applied to anything but completed forms.”  After the Court’s decision, both sides presented expert witnesses and the trial court subsequently granted the defendant’s motion for summary judgment, dismissing the action. 

On appeal, the Appellate division reversed, and this time granted the plaintiff summary judgment in a 4-1 decision.  Their reasoning was based on the fact that “the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position.”  Defendants appealed to the Court of Appeals, who then had a more complete record in which to render a decision in this case.

Defendants argued in the Court of Appeals that the expert testimony established that the requirement that forms “shall be properly braced or tied together to maintain position and shape” could not logically apply to one side of a form, as is present in this case, since there is no ostensible shape to be maintained.  However, the Court of Appeals agreed with the Appellate Division that the Industrial Code can, in fact, be applied “to a single form wall for purposes of ensuring worker safety and to maintain the form wall’s position and shape.”  This was due largely to the expert testimony, including when the plaintiffs engineer expert testified that a form wall needs to be braced and that “both walls did not need to be in place to install a brace.”  Furthermore, the Court of Appeals rejected the argument that since the Code mentioned the phrase “during the placing of concrete,” it could only refer to completed forms when concrete was being poured stating that such an interpretation “would result in diminished protections for workers during the assembly of forms” which would “run[s] counter to its text and undermine[s] the legislative intent to ensure worker safety.” As such, the Court of Appeals upheld the Appellate Division’s grant of summary judgment to the plaintiff. 

Judge Pigott dissented, explaining that plaintiff was struck with a form "wall," which is not, in fact, a "form" under the Industrial Code and further, that plaintiff "was not victim of a type of accident this section was designed to prevent."