It is unclear whether a worker falling into a trench at a construction site will be afforded the benefits of Labor Law section 240 (1).
Labor Law section 240 (1) imposes strict liability against the owner and general contractor for falls from heights, such as ladders, scaffolds, sidewalk bridges, hoists, lifts, elevators, etc. Since liability is strict and not available under common law, Labor Law 240 (1) is highly beneficial to injured workers. Often, this statute is the only basis for a lawsuit by the injured worker.
The courts have been divided as to whether a worker’s fall into a construction trench will be covered by the Labor Law. See Brian J. Shoot, “Trenchant Divisions Regarding Trenches,” NYLJ (July 17, 2012, p. 4).
For example, the courts have had to struggle with the following questions:
- How deep must the trench be to qualify as an “elevation risk?” Although one appellate court said that 20 feet is an obvious height danger, other courts have had to wrestle with shallower trenches, as little as 1.5 to 2 feet deep.
- Whether the worker fell from a plank while crossing the trench or fell from the side? One court said that falling from the side is not covered under the Labor Law.
- Whether the worker fell into the trench or slid down the side? There is a hint that sliding is not covered.
In a recent court from New York’s highest court, it was ruled that falling into a trench would not be covered by the Labor Law. See Salazar v. Novalex Contracting, 18 NY3d 134 (2011).
In this case the worker was spreading freshly poured cement in a basement. There were several trenches including the one that the worker was attempting to fill. As he walked backward while using a tool to smooth the concrete, he fell into another trench partially filled with concrete.
The court held that the Labor Law was inapplicable. There was no requirement to have a railing or barricade or cover over the trench because filling-in the trench was integral to the injured worker’s job, i.e., pouring and spreading concrete over the entire floor. This case left unresolved the issue of how deep the trench needs to be in order to fall under the Labor Law.
Therefore, there are many open and unresolved issues around falls in trenches.
We have handled falls in trenches. If you have been injured in a construction accident, please feel free to contact me for a free consultation.
Prior results do not guarantee a similar outcome in your case.