Crack in Plumber’s Platform is No Joke

In a recent decision, the Supreme Court, New York County gave us a reminder that there is no de minims test for the elevation in the elevation-related risk contemplated under Labor Law § 240(1).

In Deas v. Turner Construction Company, 2024 NY Slip OP 31132(U) (Sup. Ct. N.Y. Cty 2024), plaintiff was working as a plumber for a subcontractor at a construction site consisting of construction of a new building.  At the time of the accident, there was a raised platform in the subcellar, approximately five feet high, under which the plumbers were fixing pipes.  The raised platform was a concrete forming system, comprised of hard plastic, which, eventually, concrete would be poured on top of, to create a concrete structure in the subcellar.

Prior to the accident, plaintiff installed pipes under the platform and then stood on top of the platform to check the pipes to make sure they were installed correctly.  Workers at the jobsite routinely walked on the platform and plaintiff had been told that the platform was safe to walk on.  Plaintiff acknowledges that he walked on the platform many times without issue prior to the date of the subject incident.  On the date of the accident, as plaintiff walked on the platform, a portion of it collapsed under him, causing him to fall approximately three and a half feet to the ground.

At the conclusion of discovery, plaintiff moved for summary judgment on his Labor Law § 240(1) claim and defendants moved for summary judgment to dismiss plaintiff’s Labor Law §§ 200, 241(6) and 240(1) claims.

With regard to the Labor Law § 200 claim, plaintiff argued that rather than the incident arising out of a defective condition, it arose from plaintiff being permitted to walk across the platform, and as such is a “means and method” incident for the purposes of § 200.  As such, because plaintiff did not dispute that the defendants did not supervise or control the means and methods of the work, the Court granted defendants’ motion for summary judgment as to the Labor Law § 200 claim. 

With regard to the Labor Law § 240(1) claim, defendants contended that plaintiff’s accident is not covered by § 240(1) because plaintiff only fell approximately 3.5 feet to the ground, which is an insufficient height elevation differential.  The Court disagreed with defendants’ de minimis argument, citing longstanding precedent that there is no brightline test to determine the adequacy of the elevation for the purposes of Labor Law § 240(1).  As a result, it found that plaintiff was exposed to an elevation-related risk, plaintiff fell approximately 3.5 feet, and that defendants failed to provide any safety equipment to protect him against the risk.  The Court then granted plaintiff’s motion for summary judgment as to Labor Law § 240(1).

Lastly, plaintiff did not oppose the portions of defendants’ motion for summary judgment to dismiss plaintiff’s Labor Law § 241(6) claim, and as such the court granted that portion of defendants’ motion. 

The Deas decision can be found here.

The defendants have filed a Notice of Appeal with regard to the above-discussed decision.

For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.