Gravity Claims Can Trip You Up in New York?

It is a long-standing rule of law in New York State that construction workers injured due to the force of gravity are afforded special legal status. The scope of the special statutory protection is a subject that has preoccupied the courts. One statute, Section 240 of the Labor Law, has generated appellate court decisions defining and redefining its scope, running to thousands of pages.

The stakes are high: if it is found that a worker injury resulted from the special hazards created by gravity, the worker is exempt from many requirements of proof that ordinary negligence plaintiffs must meet; a property owner’s lack of authority to directly supervise the details of work done by trades, or a worker’s own negligence, are irrelevant. Certain defendants, the owner and its “agent” – a term subject to varying interpretations – can be found liable without plaintiff proving that they had notice of a defective condition, or were aware of poor work practices. Labor Law plaintiffs recover tort damages, which often exceed awards by workers’ compensation by a multiple.

While the statute was once thought to apply only to certain types of accidents – a scaffold that collapses is an example of a classic fact pattern that triggers Labor Law liability – the scope of statutory liability has expanded significantly over the years. Until 2009, it was believed that the statute applied only to workers who fell from an elevation or were struck by certain falling objects. The statute has been applied in unique new ways in recent years.

The case of Runner v. NY Stock Exchange, 13 NY3d 599 (2009), interpreted Section 240 to apply to a worker who neither fell nor was struck by a falling object. A construction crew trying to regulate the rate of descent of a heavy object was pulling on a rope as a heavy spool was being lowered down a stair. The spool won the tug-of-war, pulling the workers toward a metal bar placed horizontally across the doorjamb at the top of the stair. Plaintiff injured his hand on the bar. The language employed by the Court suggests that the underlying reasoning was somewhat tortured (“and, the causal connection between the object’s inadequately regulated descent and plaintiff’s injury was, as noted, unmediated – or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope’s opposite end”) but the result was clear: an award of full liability to the plaintiff.

The Runner decision has left much uncertainty, since the distinction between a “mediated” or “unmediated” causal relationship to gravity is often a difficult one in the real world of construction accident litigation. One might read Runner as ruling that a Section 240 accident must be caused by the direct (“unmediated”) application of gravity to plaintiff, in analyzing whether Section 240 will apply to given facts. But this is not entirely clear.

The case of Reavely v. Yonkers Raceway Programs, 88 A.D.3d 561, a 2011 decision by the Appellate Division, First Department, is an example of how difficult the analysis can be. In Reavely, plaintiff almost fell into an open trench. Plaintiff was awarded summary judgment for full liability under Section 240 on the basis of his compelling account of the accident in an affidavit, quoted by the Court:

“When I slipped I lost my balance. My body was pulled forward and I hovered over the uncovered 10 feet [sic] trench edge without fall protection. It was 10 feet deep there because that particular section had not been backfilled. I felt that I was about to go over the edge.

I reacted immediately and instinctively to teetering by trying to stand up. I also desperately tried to counter the momentum pulling me over the edge by arching back. I knew that I was holding a potentially lethal saw which I was about to go over with, or even worse, on.

Worried about hitting my leg as well and in the process of teetering and desperately trying to prevent myself from going fully over the trench edge, my right hand came off the operating saw and it struck my right hand, thumb and forefinger before it dropped.”

In addition to possessing a vivid writing style, plaintiff was fortunate as a litigant. The appellate court affirmed the award of full liability without comparative negligence, not because he was struck by a falling object – the saw had not yet dropped – but because plaintiff claimed he was about to fall.

Many jobsite accidents are poorly documented and the only account is that of the injured worker. Courts frequently grant summary judgment to plaintiffs in Labor Law tort actions, where the only account of the accident is provided by plaintiff. The Reavely decision raises a disturbing prospect for those of us who must defend Labor Law litigation. The decision makes it temptingly easy to offer the explanation that plaintiff was “about” to fall, as a reason for any number of ordinary workplace mishaps.


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