Kaferstein - Scaffold Law Applied to Sidewalk Injury

Sunday, October 9, 2005 | 0

SCAFFOLD LAW APPLIES TO INJURY SUSTAINED WHILE WORKER WAS LOWERING PIPE FROM SIDEWALK INTO TRENCH

Kaferstein v. JP Morgan Chase & Co., NYLJ 9/28/05 (Supreme Court, New York County (LEHNER, j)

The basic legal issue presented in this Labor Law section 240(1) was whether the section applies when the plaintiff, who was positioned on the sidewalk, injured his arm when lowering a pipe into the basement of the abutting building.

Plaintiff, who was employed by General, was engaged in lowering an eleven foot-long pipe that weighed between 200 and 300 pounds into a sidewalk shaft to a point in the basement of the Building approximately eighteen feet below the sidewalk level. This pipe was needed to replace a leaking steam pipe. To move the pipe from the sidewalk into the basement, plaintiff's supervisor was located at the bottom of the shaft, and plaintiff asserted that an employee of the Building was stationed at a midway point to guide the pipe into the basement. To effect the lowering, a rope was attached to plaintiff's forearm. He asserts that he was injured when the pipe free fell with his arm attached.

Defendants did not argue that the activity in which plaintiff was engaged in moving the pipe into the Building was not covered by the statute. Rather they maintained that the section is inapplicable because the pipe was not being hoisted to a higher level, but instead was being lowered to below the sidewalk level where plaintiff was positioned.

"The basic principles to be following in determining elevation related issues on a claim under section 240(1) were set forth in Rocovich v. Consolidated Edison Company, 78 NY2d 509 (1991):"

"The various tasks in which these devices are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured."

"Based on the foregoing interpretation of the statute, at first blush it would appear that defendants and General were correct in their argument in that plaintiff, who was stationed on the sidewalk, was not performing work at an 'elevation' level, and the pipe was not at a higher level. However, the section has in general terms been stated to apply 'not simply where the work is performed at heights but where the work involves risks related to differences in elevation,' and where the protective devices listed in the statute were not provided 'to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.'"

"Here if plaintiff's supervisor, who was stationed in the basement approximately 18 feet below the sidewalk, was injured by the free fall of the pipe, there is no doubt that the section would be applicable under the interpretation set forth in Rocovich as he would have been injured from the fall of the load located at a higher level."

"Here, although the level of the required work was the sidewalk, it was an 'elevated' level insofar as the location to which the pipe was to be lowered. If instead of being located on the sidewalk lowering the pipe to the basement, plaintiff were standing a floor above and was lowering the pipe to the sidewalk, the statute would clearly be applicable. There should be no different result because the pipe was being lowered from the sidewalk. With respect to the lowering of the pipe... the fact that the object was being lowered rather than raised does not remove the case from the statute's coverage."

Since the work performed involved "risks related to the differences in elevation and the injury to plaintiff's arm resulted from a free fall of the pipe into the shaft and hence flowed directly "from the application of the force of gravity"I find that section 240(1) is applicable and defendants were required to provide plaintiff with the protection therein required."

"Since it is undisputed that the sole protection provided to plaintiff in lowering this eleven-foot pipe weighing between 200 and 300 pounds a distance of approximately 18 feet was a rope attached to his forearm, I find that defendants have failed to provide him the protection mandated by section 240(1). That plaintiff did not fall or be struck by a falling object does not affect defendants' liability as the injury to his arm was the result of the application of gravity causing the free fall of the pipe."

Plaintiff's motion for summary judgment against defendants on liability based on his claim of a violation of Labor Law section 240(1) was granted.



-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.