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In the Trenches with Labor Law 240(1) - After Appellate Division Split - Court of Appeals Set to Address

The Court of Appeals is set to hear an appeal regarding whether a below-grade trench excavation wall cave-in resulting in injuries to a construction worker implicates the broad protections of Labor Law Section 240(1) as a matter of law. The Second, Third, and Fourth Departments of the Appellate Divisions had all previously addressed this issue and held that such accidents do not fall within the purview of Labor Law 240. Presented with this issue for the first time, the First Department held otherwise. 

In Rivas v Seward Park Hous. Corp, 2023 NY Slip Op 04415, 219 AD3d 59, the First Department reversed the dismissal of the plaintiff's complaint under Labor Law Section 240(1). It held that accidents involving a below-grade trench cave-in do indeed implicate Labor Law Section 240(1), despite being at the same level as the injured worker and despite case law from the Appellate Division, Second, Third, and Fourth Departments generally holding otherwise. 

Labor Law Section 240(1) generally applies to gravity-related incidents involving either a falling object hitting a worker or a worker who falls from a height. 

As the First Department noted in its decision, "Whether a plaintiff is entitled to recovery under Labor Law § 240(1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies. The single decisive question [in this connection] is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. This single decisive question centers 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. Additionally, in a "falling object" case, the plaintiff must establish that, when the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking." 

Under this framework, the First Department held that “plaintiff's injuries were the direct consequence of defendants Seward and Onsite's failure to provide adequate protection against a risk arising from a physically significant elevation differential. Viewing the evidence in the light most favorable to those defendants, the trench was approximately 6 ½-feet deep at the time of the incident. Plaintiff is 5 ½-feet tall and was kneeling at the moment of the right wall's collapse. Therefore, there was well over a one-foot height differential between the top of the earthen wall and the top of the plaintiff's head. That height differential cannot be characterized as de minimis in light of the extent of that differential, the amount of dirt that poured into the trench when the right wall collapsed suddenly, and the amount of force the dirt was capable of generating (see Runner v New York Stock Exch., Inc., 13 NY3d at 605).

Moreover, the earthen wall, which required securing for the purposes of the undertaking, collapsed because of the effects of gravity, and the makeshift shoring plainly failed to provide adequate protection against the risk arising from the physically significant elevation differential. The harm to the plaintiff flowed directly from the application of the force of gravity to the earthen wall; the plaintiff's injury is directly attributable to the risk posed by the physically significant elevation differential (see Runner v New York Stock Exch., 13 NY3d at 604-605).” Id., 219 AD3d 59. 

The defendants/respondents moved for leave to appeal to the Court of Appeals at the Appellate Division, and that motion was granted (2023 NY Slip Op 76023(U)). The matter will now be fully briefed and argued at the Court of Appeals. No timeline is available, but a decision is expected within the next approximately six months. We will provide an update on the matter once a decision has been rendered, along with our commentary as to the implications any such decision is likely to carry. 

For now, those cases involving a below-grade trench cave-in such as the one here will turn on where the case is venued. In the First Department, i.e. Bronx and New York County, such incidents will at least implicate Labor Law 240(1) and will not be, as a matter of law, outside the scope of the statute. Elsewhere, in all other venues in New York, such accidents will be outside of the scope of the statute.

Given the absence of any direct authority from our Court, Supreme Court was bound to follow the on-point precedent from our sister departments (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]). We, however, are not so bound (id. at 665). We decline to follow the Appellate Division authority identified by Supreme Court, all of which pre-dates Runner and Wilinski, to the extent that it is inconsistent with Court of Appeals law.


construction, labor law, excavation, appeal, litigation