Colella v. The Port Authority of New York and New Jersey (NYLJ, 10/1/12) is another example of how the trial courts seek to apply the various interpretations with respect to a worker seeking recovery for injuries incurred in an elevation-related task under New York’s “Scaffold Law” (Labor Law §240(1)).
In this case the plaintiff, working at the “Freedom Tower” construction site (officially known as One World Trade Center), was instructed to use a jackhammer to remove a concrete ledge that was approximately 6 to 12 inches high and 12 to 18 inches wide. The ledge, approximately 30 to 40 feet long ran along a wall of the building. In order to perform this job, the plaintiff had to stand on a pile of rubble that had not been cleared away holding his 90 pound jackhammer in a perpendicular position and hammer into the side of the ledge which was about 3 to 3 ½ above the surface on which he was standing. As a result of using the jackhammer in this position, which plaintiff complained to his superiors was dangerous; he was injured when it “took a bounce” as it broke through the concrete causing him to drop it. The jackhammer fell 3 feet to the ground and its bit penetrated his right foot.
Plaintiff alleges that the type of work he was doing required a scaffold so that he could stand above the ledge and drill down and a “tie-off” to secure the jackhammer from falling. He states that he further requested that the rubble he was standing on be removed. As all of his requests were denied, he was “obliged to operate his jackhammer in that way under fear of losing his job”.
In seeking recovery under section 240(1), the plaintiff avers that his injury was “elevation-related” since it was the force of gravity that caused the jackhammer to fall and that it would not have fallen had it been “tethered” or “tied-off” to him. In other words, had he been provided the proper and adequate safety devices enumerated in the statute, his accident could have been avoided.
The defendant, on the other hand, contends that this is not an elevation-related accident protected under Labor Law §240(1) because the plaintiff neither fell from an elevated surface, nor was he struck by a falling object and, therefore, “is outside the statute’s ambit”.
As to this issue, the Supreme Court, N.Y., County, denied defendant’s motion for summary judgment dismissal and granted the plaintiff’s cross-claim. The court held that the injury here was a consequence that flowed directly from the application of the force of gravity to the jackhammer and there was “no dispute that the accident occurred when the jackhammer, which was ‘improperly hoisted or inadequately secured’ descended three feet” landing with it’s one inch bit in the plaintiff’s foot. The court, citing the Court of Appeals in Runner v. NY Stock Exchange, 13 NY3d 599, (2010), found that holding the jackhammer 3 to 3 ½ feet above the work surface created a “physically significant elevation differential” (id. at 603) and, given the weight of the jackhammer and the amount of force it was capable of generating in its descent, the height differential was not de minimus (id. at 605)