In a recent decision, the Appellate Division, First Department considered the issue of whether a below-grade excavation cave-in represents an elevation-related hazard within the purview of Labor Law § 240(1).
The facts of Rivas v. Seward Park Hous. Corp., 2023 NY Slip OP 04415 (1st Dep’t 2023) necessitate some explanation. In January 2015, a significant leak occurred on real property located at 413 Grand Street in Manhattan, and the owners hired an excavation company, who subcontracted the work to plaintiff’s employer, to perform an exploratory excavation to ascertain if the source of the leak was coming from the building’s external water pipes.
Excavation was performed by laborers who dug a trench using hand shovels. Dirt was removed from the trench and placed in a pile at the top of one of the earthen walls. The depth and length of the trench increased as work on it progressed. By day three, plaintiff and his team reached the water pipes, which were located approximately 12 feet underground. The immediate area where the water pipes were unearthed was only large enough for one person to occupy at a time. Plaintiff was tasked with digging around the pipes to expose them, and as he did, leaking water from the pipes came into the trench, covering his work boots. Just prior to the accident, plaintiff estimated that the trench was 12-feet deep, 9 ½-feet long, and 3-feet wide.
The right wall of the trench then caved in, burying plaintiff, but he was able to be dug out alive by his coworkers and emergency services personnel from the collapsed trench.
Defendant’s onsite foreman testified, inter alia, that plywood shoring was initially employed along the walls of the trench once it was four-feet deep, which consisted of plywood panels on each side of the wall of the trench; and that at the time of the subject incident, the trench was approximately six and a half-feet deep.
Plaintiff commenced an action asserting, inter alia, a cause of action under Labor Law § 240(1), and after discovery, plaintiff moved for summary judgment on the issue of liability on that action. Plaintiff relied on deposition testimony, and offered an affidavit of an engineering expert who opined that the use of a trench box or similar equipment would have prevented the cave-in and that the makeshift shoring was inadequate to protect plaintiff from the elevation-related hazards posed by the trench. Defendants cross-moved for summary judgment to dismiss the Labor Law § 240(1) claim on the grounds that the statute did not apply to a trench cave-in.
The lower Court denied the aspect of plaintiff’s motion seeking summary judgment on his Labor Law § 240(1) claim, and granted the cross-motion of defendants seeking to dismiss the Labor Law § 240(1) claim. In its decision, the lower Court cited several Appellate Division decisions from the Second, Third and Fourth Departments determining that a cave-in of an excavation does not present an elevation-related hazard.
Plaintiff argued, inter alia, that there was a significant elevation difference between the top of the wall and the kneeling plaintiff and that the wall collapsed due to the force of gravity and the absence of a protective device. Defendants argued, inter alia, that trench cave-ins are a general construction site hazard, rather than an elevation-related danger under the statute.
In its decision, the First Department reasoned “[t]he single decisive question center[s] around a core premise: that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability”. See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 7 (2011). For “falling object” cases, the plaintiff must establish that, at the time the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking. See Fabrizi v. 1095 Ave. of the Ams., LLC., 22 N.Y.3d 658, 662 (2014).
The First Department held that the plaintiff’s injuries were the direct consequence of the failure to provide adequate protection against a risk arising from a physically significant elevation differential. The elevation differential occurred when the six-and-a-half feet deep trench, collapsed on the five-and-a-half-foot plaintiff who was kneeling at the time of the subject incident. This resulted in well over a one-foot height differential between the top of the earthen wall and the kneeling plaintiff. Moreover, the earthen wall, which required securing, collapsed because of the effects of gravity, together with the makeshift shoring, failed to provide adequate protection against the risk arising from the physically significant elevation differential.
As a result, the First Department reversed the lower Court’s decision, granting plaintiff’s motion for summary judgment seeking liability against the defendants on the basis of Labor Law § 240(1), and denied the defendants’ cross-motion.
This case is illustrative of a divide in the Appellate Divisions, with the Second, Third and Fourth Departments holding that a cave-in is not within the purview of Labor Law § 240(1) and the First Department refusing to adopt a similar view.
The Rivas decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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