New York State Court of Claims

New York State Court of Claims

ATKINSON v. THE STATE OF NEW YORK, #2004-032-055, Claim No. 101679, Motion Nos. M-68063, CM-68159


A cause of action based on Labor Law § 240 (1), the "scaffold law," is dismissed because the circumstances of the worker's injury involve a relative elevation differential that is de minimus, because the object was not being lifted or hoisted when it fell, and because the injury did not occur because any safety device was missing, insufficient or defective

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Livingston L. Hatch, Esq.
Defendant's attorney:
Thomas E. KellyHorigan, Horigan, Lombardo & Kelly
Third-party defendant's attorney:

Signature date:
June 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In 1998, claimant was employed by Joseph Baldwin Masonry Contracting, Inc., a company that was working on the construction of a new maximum security prison in Malone, New York. On July 14, 1998, claimant was engaged in erecting a scaffold from which the masons would work to lay a concrete block wall. He was "placing portions of the scaffolding above his head approximately six feet" (claim, ¶4), when one those pieces eventually fell back down while claimant was standing nearby. When he attempted to catch it, his shoulders and hands were injured. The claim sets forth causes of action based on §§ 240 (1) and 241 (6) of the Labor Law. The instant motion and cross motion relate to the cause of action based on § 240 (1).

The relevant portion of this statute reads as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
In Ross v Curtis-Palmer Hydro-Electric Co. (81 NY2d 494 [1993]), the Court of Appeals explained the strict liability nature of this statute:
The purpose of the statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520; 1969 NY Legis Ann, at 407). It is by now well established that the duty imposed by Labor Law § 240 (1) is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, e.g., Haimes v New York Tel. Co., 46 NY2d 132, 136-137).
It is also well-established that "contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury" (Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286 [2003]).

For this "scaffold law" to apply, however, the injury must have been caused by a gravity-related hazard, as the statute does not encompass "any and all perils that may be connected in some tangential way with the effects of gravity[,]" even if the injury was caused "by an inadequate, malfunctioning, or defectively designed scaffold, stay or hoist" (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501). Thus, if the worker's injury is unrelated to an elevation-related risk that, in addition to involving the effect of gravity, also brings about the need for one of the safety devices enumerated in the statute, no § 240 (1) liability exists (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914 [1999]). It is against this legal background that the facts giving rise to the instant claim must be assessed.


At his examination before trial (Kelly affirmation, Exhibit D [pp 64-84]; Atkinson affidavit, Exhibit 3 [pp 61-83]) and in his affidavit submitted in support of the cross motion, claimant stated that his work on the day in question consisted of erecting a three tier scaffold on the interior wall of a building, which was 200 feet long by 100 feet wide and which had a gabled roof that came to a point over 20 feet in the air. The building's walls were made up of large concrete blocks that were laid by masons who stood on the metal scaffolding that claimant erected. First, he would erect one tier of scaffolding, then the masons would then stand on that tier to lay the block for that level. When the masons were finished, claimant would erect the next higher tier. At the time of the accident, claimant was working on the north side of the building and beginning to put up the third tier of the scaffolding (Atkinson affidavit, ¶3). He had performed this same job for a number of days and had frequently asked for someone to work with him on the task. A second person had been assigned only from time to time, and on the day in question claimant was the only worker engaged in erecting this scaffold.

His immediate task was to lift individual pieces of the "main frame" of the scaffold (each made up of eleven pieces of pipe welded together) and place them on protruding inserts, called horse cocks, that held them off the ground or deck of the scaffold tier. After mounting six or seven of these pieces, claimant would then climb up, lift the frame pieces off the insert, and install them. Each scaffold piece weighed approximately fifty pounds and was roughly six feet by five feet. The diameter of the pipes making up the pieces was two inches.

Claimant explained that to lift each piece he would place one hand on an inside pipe and the other on an outside pipe, toward the middle of the piece. He would then lift it with his arms outstretched and raise it over his head to hook to the uppermost corner of the piece over the horse cock. It would then remain in place until he climbed up to the higher level, where he lifted it from the top and used it to construct the scaffold. This was the way he had been instructed to deal with the scaffold pieces if working alone and the method he had been using for many days. Whenever there was more than one worker, the pieces would simply be lifted up to the second person who would already be standing on the higher tier and who would then install each one in turn.

Claimant had already constructed the two tiers of scaffolding, and was working on the platform of the second tier which was approximately 15 feet off the ground (the scaffolding was 12 feet high and there were 2 to 3 foot high jacks underneath the first tier). Immediately before the accident, claimant climbed onto the third tier and placed the inserts, or horse cocks, in the end of each frame. He then went back down to the second tier to pick up the pieces of scaffolding frame and lift them to hook them over the inserts.

After lifting and placing the piece that subsequently fell, claimant stated that he followed his usual routine of checking to make sure that the scaffold piece was securely hooked over the horse cock and that it was not swinging. He then walked about twenty or thirty feet, to get a new scaffold piece. He walked back, passing the piece that he had most recently installed and proceeded seven feet further to the next horse cock. He lifted the new piece, hooked it over the horse cock, and turned to walk back to obtain the next piece. "[A]ll of a sudden it [the scaffold piece that he had previously mounted] just fell and I just caught it, you know, from keeping it from hitting me" (EBT, p 71). His right arm was injured in this maneuver, and because of the pain, he then dropped the piece to the floor. Claimant was unable to continue working after that. He reported his injury and drove himself to the emergency room.

The horse cock, the insert or protrusion on which the scaffold piece was hooked was three to four inches long and, as noted above, the pipes making up the scaffold piece were two inches in diameter (EBT, p 72). Claimant stated that he is 5 feet 10 inches tall, and he estimated that when the scaffold piece was hanging from the insert, its lowest point was approximately 6 feet off the ground. As it fell, he caught it when the lowest point was about 4 1/2 feet off the ground or, in other words, after it had fallen about 1 1/2 feet. Claimant does not know what caused the 40 to 50 pound scaffolding frame to fall. He could only speculate that perhaps one of the workers in the area, who were operating heavy equipment, had knocked it off or jarred the scaffolding, although he did not recall feeling any jarring. It is also possible, he stated, that the insert simply gave way (Atkinson affidavit, ¶6).

Claimant was shown how to perform this job by his employer and thereafter was given no direct supervision. He states, however, that there were many New York State inspectors who had watched him work and were aware of the method that he used to erect the scaffold. He was never told to perform the work in a different way and he was never given any securing straps, ropes or tie lines to work with (id.). In support of the cross motion, he submitted an instruction sheet from Bil-Jax, a company that produces step-type scaffolding frames similar to the ones that claimant was erecting (id., ¶5, Exhibits 1, 2). In the illustration numbered 6 of Exhibit 2, the directions state, "Hoist end frames and braces to next level by means of rope and tag line."


Defendant contends that section 240(1) is applicable in "falling object" cases only when the object causing the injury falls while being hoisted or secured and when the reason it falls is the absence or inadequacy of a safety device of the type enumerated in the statute (Hayden memorandum of law, pp 1-2, citing to Narducci v Manhasset Bay Assocs., 96 NY2d 259 [2001] and Roberts v General Electric, 97 NY2d 737 [2002]). Counsel for claimant, in cross-moving for summary judgment in favor of his client, asserts that when material is placed at an elevated height, there must be some device, such as a strap, rope or tag line to secure the pieces so they do not fall as a result of gravity and injure a worker (Hatch affirmation, ¶2).

As noted above, claimant was in the process of constructing a scaffold when he was injured. It is now accepted that the provisions of § 240 (1) govern those situations where the work being performed is constructing and demolishing scaffolds as when the work being performed is the construction and demolition of the buildings or structures referenced in the statute (Alderman v State of New York, 139 Misc 2d 510 [Ct Cl 1988]; accord Kyle v City of New York, 268 AD2d 192, 197 [1st Dept 2000], lv denied 97 NY2d 608 [2002] and cases cited therein; Labodin v State of New York, 242 AD2d 563 [2d Dept 1997]; 52 NY Jur 2d Employment Relations (236). Also, there is no dispute that claimant was not given any of the enumerated devices (hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, or ropes) in carrying out his work. It is also irrelevant that claimant was located approximately 15 feet above ground level, for working at an elevation above ground does not increase or decrease the risk of being hit by an object falling from above (Bradley v San-Gra Corporation, 301 AD2d 709, 710 [3d Dept 2003]).

In Capparelli v Zausmer Frisch Associates (256 AD2d 1141 [4th Dept 1998], affd sub nom Narducci v Manhasset Bay Assoc, 96 NY2d 259 [2001]), an electrician was assigned to install light fixtures in a ceiling grid. He had climbed approximately four feet up a ladder, lifted the light fixture, and rested its edges on the grid. He then started to descend the ladder, in order to change position so he could secure the fixture onto the grid, but he was struck by the falling fixture and injured on the hand and wrist that he put out to stop or deflect it. He brought suit under Labor Law § 240(1), maintaining that he should have been given a scaffold from which to perform his work.

The Fourth Department dismissed the cause of action based on the scaffold law, holding that the worker's injury was the result of his exposure "to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)" Capparelli, supra 256 AD2d 1141, quoting Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]). The Court of Appeals affirmed, noting that with respect to the "falling objects," as opposed to "falling worker" cases, the falling of an object must relate to the "significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured" (96 NY2d, at 267-268, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The high court further clarified that for the statute to apply an injured worker had to show more than that an object fell and caused injury. He or she "must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (Narducci v Manhasset Bay Assoc, supra, 96 NY2d, at 268). The electrician was working on a 10 foot high ceiling and was standing approximately half way up an eight foot ladder when the fixture fell. The fixture's fall, therefore, was from no more than a foot above the worker's head, assuming the worker was 5 feet tall, even less if he was closer to 6 feet tall.
Under these undisputed facts, there was no height differential between plaintiff and the falling object. Plaintiff was working at ceiling level when his accident occurred. That being so, this is not a case that entails the hazards presented by "a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured". The fact that gravity worked upon this object which caused plaintiff's injury is insufficient to support a § 240 (1) claim. While many workplace accidents, including this one, could be classified as "gravity-related" occurrences stemming from improperly hoisted or inadequately secured objects, courts may nonetheless distinguish those occurrences that do not fit within the Legislature's intended application of Labor Law § 240 (1). The exclusion made for the de minimis elevation differential in this case is appropriate.
(Id., at 269-270 [citations omitted].)

The de minimis exception to the scope of section 240(1) and the requirement that the "relative" elevation differential between the worker and the falling object be considered has been illustrated in a number of other instances. In Joseph v Lakeside Builders and Developers, Inc.,

(292 AD2d 840 [4th Dept 2002]), a worker was struck by a cinderblock dislodged when it was struck by a second cinderblock the worker was lifting to place beside it. Although there was some dispute as to the actual height differential between the worker and the falling object, it was always within reach, and therefore, "any height differential between plaintiff and the cinderblock that fell on him was de minimis." In Almanzar v Goval Realty Corp. (286 AD2d 278 [1st Dept 2001]), a worker intending to fix a fire escape's retractable ladder reached for or put his arm through the rungs of the ladder, which then fell. That worker was on a 10 foot high stepladder, and the fire escape platform was 10 to 12 feet off the ground. Thus, "while plaintiff's injuries may have occurred because the fire escape ladder was inadequately secured, there was no significant elevation-related differential between his arm and the fire escape ladder" and the hazard was not one of those contemplated by the statute. It is arguable, therefore, that the inescapable fact that the bottom of the scaffold piece was just inches above claimant's head when it fell, is sufficient to preclude a cause of action under Labor Law § 240 (1).

More significantly, however, claimant's injury, like the injury of the worker in Capparelli (supra) and the workers in the cases cited below, was not caused by an object that was in the process of being lifted or hoisted, nor was it caused by the fact that a safety device of the sort listed in the statute was missing, inadequate or defective. In Ortlieb v Town of Malone (307 AD2d 679 [3d Dept 2003]), a pipe rolled into a trench that was only six feet deep at one point and four feet deep at another, injuring a worker. This situation fell within the scope of the statute, it was held, because the pipe, weighing 850 pounds, had been inadequately braced with blocks of wood and rocks on an inclined slope; the pipe, or perhaps the items bracing it, were loosened by the vibrations of a backhoe, leading to the injury. Thus, the object that caused the injury was a load which it was necessary to secure in order to carry out the project and it was the failure of the devices securing the load that caused it to harm the worker (id., at 680).

The situation presented in Ortlieb (supra) was distinguished by that court from others that involved the collapse of trench walls, a part of the "ordinary dangers of a construction site," and those involving objects that have become dislodged in other ways because they "did not fall while being secured or due to the inadequacy of safety devices" (307 AD2d at 680). Examples of the latter situations included a concrete block that was dislodged by a backhoe and fell into a trench on a worker in an adjacent excavation (Fischer v State of New York, 291 AD2d 815 [4th Dept 2002]) and a pipe that was dislodged by a backhoe and fell on a worker in a nearby trench (Gampietro v Lehrer McGovern Bovis, 303 AD2d 996 [4th Dept 2003]). The common feature in all of these situations, as in the instant claim, was that the object which injured the worker did not fall while being hoisted or raised, and it did not fall because a safety device of the kind enumerated in the statute was missing or inadequate.

The injury suffered by claimant, therefore, does not fall within the type of injuries covered by Labor Law § 240 (1). Defendant's motion for partial summary judgment is granted and the cause of action premised on this statute is dismissed. Claimant's cross motion is denied.

June 28, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for partial summary judgment in its favor and on claimant's cross-motion for summary judgment in his favor:
1. Notice of Motion and Supporting Affirmation of Derek L. Hayden, Esq., with annexed Exhibits and Memorandum of Law

2. Notice of Cross-Motion and Supporting Affirmation of Livingston L. Hatch, Esq., with annexed Exhibits and Affidavit of Tim Atkinson

3. Affirmation in Opposition to cross motion of Derek L. Hayden

Filed papers: Claim; Answer