Getting a Recovery for Construction Work Accidents; Falls in Trenches

July 17, 2012

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.


$210,000 Settlement for Construction Accident at Rego Center Shopping Mall

May 30, 2012

We recently obtained a settlement of $210,000 for our client’s construction accident while working in constructing the Rego Center Shopping Mall in Rego Park (Queens), New York.

The client fell while on the job.  He was carrying various wooden forms, and he claimed to have tripped due his foot getting entangled in a cable left by another contractor.  The client sustained various knee injuries requiring surgery.

Liability turned on Labor Law 241 (6) and whether the client did indeed trip due to a cable or other factors.  This issue and damages were highly contested.

Please note that prior case results do not guarantee a similar result in your case. 

Getting a Recovery from Crane and Construction Accidents; The View of a Crane Operator

May 23, 2012

The New York Times‘s article, “In a Crane at 1,100 Feet, There Is No Room for Error” provides the viewpoint of a crane operator atop 1 World Trade Center.  It relates what a crane operator does and the dangers of the job.

The point of the story is that crane operators must be extraordinarily careful, well-trained, and calm.  The smallest mistake can result in death to not only the crane operator, but other workers.

It is noteworthy that most crane deaths in New York City have occurred due to an equipment failure rather than the operator’s negligence.

Where there is a crane collapse construction workers in New York have a unique source of recovery.  Labor Law 240 (1) makes the building owner/developer and the general contractor liable in the event of a crane failure.  The owner and contractor are strictly liable where the crane was unsafe.

The Labor Law has proven to be a valuable source of recovery for injured construction workers, especially the surviving family in the event of an operator’s death.  Unfortunately, corporate interests, including the insurance industry, seek to rescind it so that injured crane workers are left “blowing in the wind.”  The New York State Trial Lawyers Association, unions, and other consumer and public interest groups are fighting any weakening of Labor Law 240 (1).

Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

April 19, 2012

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12,

Getting a Recovery for Construction Accidents; Is It Construction or Cleaning?

February 22, 2012

New York’s Labor Law section 240(1) is often invoked in construction accidents because it imposes strict liability upon the building owner and the general contractor.

However, there is a difference between “construction” activities versus “cleaning.”  “Construction” will be protected while “cleaning” will not.  This was highlighted in a recent case, Dahar v. Holland Ladder & Mfg. Co. (Court of Appeals, February 21, 2012, # 23).

In Dahar plaintiff was injured while working at West Metal Works which was making a “wall module”.  This wall module was least seven feet high and was being made for Bechtel National for installation in a nuclear waste treatment plant.

          After the module was made, it had to be cleaned before being shipped to the nuclear waste plant.  Dahar was cleaning the module.  While standing on a ladder provided by his employer, West Metal, the ladder broke causing him to fall.

Dahar sued Bechtel and the landlords of his employer’s facility under authority of Labor Law section 240(1).  This statute imposes liability upon the building owner and contractor for a fall from a faulty ladder during construction.

The court ruled that the worker did not get the protections of the Labor Law.  In essence, he was “cleaning” rather than engaging in construction.

Although the Labor Law will afford protection to a worker who cleans the site during the course of construction, Dahar was cleaning a completed, manufactured product rather than a construction site.  The court apologized the situation to the situation of a bookstore employee climbing a ladder to dust-off a book.

However, each construction accident presents it own unique set of facts which should be reviewed with an attorney as soon as possible.  For example, cleaning windows of a commercial building will be covered while routine cleaning of a home will not. 

If you have been involved in a construction accident, please feel free to call me for a free consultation at 800-251-1434 or write to

Mark E. Seitelman, 2/22/12,

$450,000 Settlement for Injured Supermarket Worker

November 7, 2011

We obtained a settlement of $450,000 for an injured supermarket worker.

The client sustained lumbar herniated discs (no surgery) when shelving fell on him in his store.

       An illustration of shelving end caps

The store was undergoing a renovation.  A pallet of end caps was delivered to the loading dock.  End caps are installed at the end of aisle shelves, and they are tall and heavy.  They were supposed to be wrapped, but someone unwrapped them allowing the bunch to become unstable. 

While waiting for the freight elevator, the  end caps fell upon the unsuspecting worker, one at a time, similar to falling dominoes.

Our case was against the general contractor.  The worker collected workers’ compensation benefits from his employer, the supermarket. 

If you have been injured in a work  accident,  please feel free to call me for a free consultation at 800-581-1434 or write to

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 11/7/11,

Getting a Recovery for Lost Wages for an Illegal Alien

July 26, 2011

The use of illegal or undocumented immigrants is widespread, especially in the construction industry.        

Can an undocumented alien collect lost wages in an accident lawsuit?

The answer is yes. 

New York’s highest court ruled in Balbuena v. IDR Realty, LLC, 6 NY3d 338, 812 NYS2d 416 (2006) that a undocumented worker can recover for both past and future lost wages even though the worker is not legally authorized to work in the United States.  The court ruled that New York’s Labor Law applies to all workers across the board.

The court also reasoned that if a lost wage were precluded, then a negligent employer would be rewarded for an unsafe workplace.  Furthermore, an employer would lack the incentive to provide a safe workplace as mandated by the Labor Law.  Last, precluding wage recovery would reward employers who disregarded the employment verification system.

This decision is not limited to the construction industry.  It includes all undocumented aliens in other occupations, such as the restaurant and food industries.

If you or a family member have been injured in an accident, please feel free to call us for a free consultation at 899-581-1434 or write to

Mark E. Seitelman, 7/26/11,

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