Fall Through Holes at Construction Sites

It is also well established law that a worker's fall through a hole (even a partial fall) in a flat surface to a level below at a construction site is within the protections of Labor Law § 240(1). Carpio v. Tishman Construction Corporation of New York, supra and O'Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 698 N.Y.S2d 632 (1st Dept., 1999) The deciding factor is whether a properly placed safety device could have prevented the worker's fall.

In Carpio v. Tishman Construction Corporation of New York, supra, the plaintiff was injured when he backed into a hole in the floor while looking up at the ceiling, as he was extending a paint roller that he was about to use to paint the ceiling, causing his leg to fall three feet down an uncovered riser or shaft that was 10 to 14 inches wide that was created to permit the extension of piping to the floor below. The Appellate Division, in ruling that the plaintiff was entitled to partial summary judgment, held as follows:

"Here, the risk of injury existed because of the 'difference between the elevation level of the required work' (the third floor), and a 'lower level' (the bottom of the piping shaft), and common sense alone tells us that this accident was gravity-related. Plaintiff's partial fall through a hole at a construction site can hardly be characterized as only tangentially related to the effects of gravity." Id, 240 A.D.2d at 235.

It is established law that where a laborer falls through a hole in a flat surface, and no safety devices are provided, summary judgment in favor of plaintiff must be granted pursuant to Labor Law § 240(1). See, Figueiredo v. New Palace Painters Supply Co., Inc., 39 A.D.3d 363, 833 N.Y.S.2d 492 (1st Dept., 2007) ("Plaintiff sustained her prima facie burden on her Labor Law § 240(1) claim through admissible evidence that her decedent, fell through an open hole from an unsecured piece of plywood that had been laid over the beams when the platform shifted, and that no safety device was provided to prevent his fall") and Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693, 823 N.Y.S.2d 416 (2nd Dept., 2006) (Injured worker awarded summary judgment on his Labor Law § 240(1) where decedent was performing work in a building under construction in close proximity to two floor openings-each 36 inches by 42 inches-that were used to lower equipment and materials to lower levels and that were covered only with unsecured plywood boards, such, contrary to the ruling below, was an "elevation-related risk within the scope of Labor Law § 240(1)")

See, also, O'Connor v. Lincoln Metrocenter Partners, L.P., supra, (Injured worker awarded summary judgment upon his Labor Law § 240(1) claim where plaintiff fell into an opening in the floor when the plywood that had been placed over it shifted and gave way); Carpio v. Tishman Construction Corporation of New York, supra (Injured worker awarded summary judgment on his Labor Law § 240(1) claim where plaintiff's work "subjected him to an elevation-related risk covered by the statute and that he suffered injury as a result of defendants' failure to fulfill their statutory duties") and Becerra v. City of New York, 261 A.D.2d 188, 690 N.Y.S.2d 52 (1st Dept., 1999) (Injured worker awarded summary judgment on his Labor Law §240(1) where plaintiff was working on an elevated level "on a temporary plywood platform that was not attached to the walls or otherwise secured in any way" and "no safety devices were provided to prevent works from falling from the platform.")

In Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130, (1st Dept., 2011), the First Department held that plaintiff was entitled to partial summary judgment because a fall into a four foot deep open pit at a construction site was an elevation-related hazard, and repeated the rule that "there is no bright-lien minimum height differential that determines whether an elevation hazard exists."

In Serino v. Miller Brewing Company, 167 A.D.2d 917, 562 N.Y.S.2d 283 (4th Dept., 1990), lv. to app. dism. 78 N.Y.2d 1008, the Fourth Department reversed the trial court so as to award summary judgment to the plaintiff under § 240(1), where one of his legs fell through an eighteen inch wide, uncovered hole that had been drilled in the floor by electricians. See, also, Siago v. Garbade Construction Co., 262 A.D.2d 945, 701 N.Y.S.2d 538 (4th Dept., 1999), affirming the grant of partial summary judgment to a plaintiff who fell eighteen inches, because "the determination whether Labor Law § 240(1) applies does not depend upon the distance a worker falls."

In Megna v. Tishman Construction Corporation of Manhattan, 306 A.D.2d 163, 762 N.Y.S.2d 63 (1st Dept., 2003), the grant of partial summary judgment to the plaintiff was affirmed where the plaintiff fell from a temporary two-step wooden staircase, because "the shortness of the distance of plaintiff's fall-at least two feet according to the plaintiff, no more than 16 inches according to defendants-is irrelevant."

In Serpe v. Eyris, 243 A.D.2d 375, 663 N.Y.S.2d 542 (1st Dept., 1997), the First Department affirmed the trial court's issuance of a directed verdict in favor of the plaintiff pursuant to § 240(1), where the plaintiff, while painting the ceiling of an apartment, stepped backward into an uncovered hole in the floor where a staircase was being built. As a result, the plaintiff was initially subject to a drop of twelve to eighteen inches, representing the space of the top two steps of the staircase that had yet to be installed, and then fell down the rest of the staircase that had been installed. Prior to the accident, planks or ropes had been used to prevent workers from falling into the hole, but those protective devices were not in place at the time of the accident. In affirming the directed verdict, the court stated that:

"it is self-evidence to us that plaintiff's presence was required at the very location he was supposed to have been working, and that the work entailed a significant, elevation-related risk that could have been obviated by defendants' compliance with their statutory obligations." Id, 243 A.D.2d at 378

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