A New York Construction Accident Lawyer Who Represents Injured Workers Tracking Developments in Construction Accident Law.

Although New York Labor Law 240(1) has undergone a rather significant judicial expansion in the past few years, beginning most notably with the Runner case decided by the Court of Appeals in 2009, plaintiff attorneys should take heed that lower courts have at times not shown a willingness to read the statute in an overly-broad fashion.

A recent example is McKenzie v. Cappelli Enterprises decided on November 30, 2012 by Judge Shlomo Hagler of the Supreme Court, New York County.

The plaintiff’s accident occurred when he climbed a ladder carrying hot asphalt in a bucket, and when he set the bucket down on the roof the asphalt splashed on him. The asphalt was 500 degrees and plaintiff required skin grafts.

The plaintiff claimed that section 240(1) was violated because he was working at an elevation and the asphalt was a material that should have been secured, as the terms of the statute require. The court rejected this argument, finding that the accident was the result of “usual and ordinary dangers of a construction site” and not the application of the force of gravity to an object that required securing. The moral of the story, then, for Labor Law afficionados, is that just because a worker is injured at a height does not necessarily warrant the imposition of section 240(1) liability.

This particular holding, however, did not mark the end of the plaintiff’s journey through the legal system. The court found that the issue of whether certain Industrial Code sections were violated, triggering the protections of section 241(6), should be submitted to a jury.



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