The facts in the recent case Diaz v Raveh Realty, LLC concern an important aspect of New York's Scaffold Law -- Labor Law § 240( 1). The mechanism of the accident in Diaz implicates the aspect of § 240(1) which seeks to protect a worker from a falling object that was being secured or should have been secured. The worker must show that the absence or inadequacy of a safety device of the kind enumerated in the statute caused the object to fall. The mechanism of the accident in Diaz is an instance where a securing device would have been necessary or expected.
In Diaz, the plaintiff was injured at a construction site owned by the defendant while employed as a carpenter. His co-workers were stripping plywood forms from a cured concrete-poured ceiling. The project overseer for the defendant acknowledged that such plywood forms would be secured by a rope when being removed from near the building's edge. The plaintiff's expert opined that a safety device was required to secure the formwork to protect against the risk that the formwork would fall.
The plaintiff was injured when he was hit by a heavy four inch by eight inch plywood form that fell or was dropped by co-workers who were stripping plywood forms from the cured concrete-poured ceiling. The plaintiff was looking down to clear debris when the accident happened, so it is unclear whether he was hit by the plywood that a co-worker dropped or tossed or was hit by a loosened plywood form that fell from the ceiling. The Appellate Division First Department found that, in either instance, the plaintiff was entitled to partial summary judgment on his § 240(1) claim.
The First Department cited Gutierrez v 610 Lexington Prop, LLC, concluding "[t]he type of work being performed . . . involved a load that required securing . . . ." The Court stated further that, "because [the] plaintiff's injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in the statute, he was entitled to partial summary judgment."
Gutierrez and two Court of Appeals cases provide context for the First Department's holding in Diaz. Gutierrez concerned a worker who fell backwards when he was being passed a heavy concrete form from workers on a scaffold above and was unable to control the form's descent. The accident in Gutierrez is similar to a Runner v New York Stock Exch. Inc. type of accident -- i.e., where an accident is caused by a heavy object that generates enough force to injure a worker, even if the fall is from a de minimis height.
The facts underlying the Court of Appeals' memorandum decision in Outar v City of New York equally apply to a "securing a load" type of accident like the one in Diaz (Second Department Outar Decision & Order).
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