First Department Holds That Beam Which Struck Plaintiff, Although Being Carried By Co-Workers At The Time, Was Nevertheless A Labor Law § 240(1) Hazard

In Bonaerge v. Leighton House Condominium, three workers were moving a structure of steel beams in the shape of an upside-down "U".  While the beams were being carried by two of the workers, the plaintiff walked along in preparation for assisting the workers to lower the beam to the ground.  As the beam was being lowered the workers lost control, the beam fell and struck plaintiff in the chest and knee before reaching the ground.  The First Department held that the beam required securing for the purposes of the work and that its height differential was not de minimis.  Although the defendant proffered an expert opinion that devices were neither necessary nor customary for the work, the First Department found the opinion to be "insufficient to establish the absence of a Labor Law § 240(1) violation."

The First Department did not discuss the Court of Appeals decision in Rodriguez v. Margaret Tietz Center for Nursing Care, Inc., in which the plaintiff was injured while lowering a 120-pound beam to the ground from seven inches above his head with the assistance of three co-workers.  The Court of Appeals held that the work in that case did not expose plaintiff to the special elevation related risks contemplated by Labor Law 240(1).  Instead, he was merely exposed to the usual and ordinary dangers of a construction site.