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.
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