The Appellate Division, First Department, issued a decision clarifying the concept of "foreseeability" in Labor Law 240 analysis. The decision sets forth a useful exploration of the concept and how to apply it in various scenarios involving injured workers in gravity-related incidents. 

In Ciaurella v Trustees of Columbia Univ. in the City of N.Y., 2024 NY Slip Op 03455 (1st Dept. 2024), the court made clear that the foreseeability test should not be applied in a strict negligence test. Rather, the question is whether the plaintiff can show that the risk of some injury from the defendant's conduct was foreseeable. The plaintiff needs to now show that the precise manner in which the accident happened or the injuries sustained were foreseeable.

The case involved a worker who was working from the interstitial space on the 11^th floor. As described in the record, the interstitial space was an intermediate walkable area above the ceiling on the 11^th floor used to house heavy mechanical equipment and air ducts, among other things. The space's floor primarily consisted of gypsum board.

The removal work resulted in numerous exposed holes where such units, ducts, and equipment were previously located. The plaintiff was instructed to erect caution tape near the entrance to the interstitial space to keep certain workers from entering the hole-strewn area.

The plaintiff used a ladder to access the space and was provided with no additional safety equipment to perform his task. He walked along the space's floor to string up the caution tape and orange netting. As he stepped on the floor with his right foot, an approximately 12-inch by 12-inch square section of the floor collapsed from beneath the area where his foot landed, falling to the floor below. 

The plaintiff's right leg fell through the hole created by the collapse, and he used his arms to brace himself to prevent him from falling through the space's floor to the 11^th floor below. The plaintiff suffered injuries as a result. There was testimony that the area that collapsed under the plaintiff's weight was a poorly constructed "patch" (an insert placed in the space's floor to fill a hole) that had been installed at an unknown time by an unknown entity. 

Under this set of facts, the lower court denied the plaintiff's motion under Labor Law Section 240. 

The Appellate Division reversed and granted the motion. 

The court held that the plaintiff had made out the necessary elements of a Section 240 claim: 1) the work required him to work at an elevation; 2) he was exposed to the effects of gravity at that elevation and fell as a direct result of the force of gravity; and 3) the protective devices required by the statute were designed to prevent the hazard that caused the fall. 

The court rejected the defendants' arguments that no liability could attach because the injury was the result of an unforeseeable collapse of a permanent structure.

The record demonstrated that the plaintiff's exposure to an elevation-related risk in the 11th-floor interstitial space was not only foreseeable but foreseen by the defendant. The project manager testified that prior to the plaintiff's accident, he had expressed concerns regarding the hazard posed by the holes in the space's floor to certain employees who might enter the space. He requested that the holes be fenced off to prevent anyone from falling through them. Indeed, the plaintiff was sent to tape off the area where he fell to prevent other employees from falling in that very space. 

Accordingly, it was, in fact, foreseeable that the plaintiff could be injured in the interstitial space if the defendants violated Section 240 and failed to provide him with enumerated safety devices (e.g., harness, lifeline, netting). 

Bottom line: Any analysis of foreseeability with respect to Section 240 should be done broadly, focusing not on the precise manner in which the plaintiff was injured but rather on whether the defendants' conduct exposed the plaintiff to the risk of some kind of injury, broadly speaking.