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.


Getting a Recovery for Construction and Work Site Accidents; Finding the Liablie Party

February 28, 2011

In construction work accidents, finding the liable party is key.

It is not enough to sue the land owner and the general contactor.  This is especially so if the injured party worked for the general contractor.   

Generally, during construction the owner is “out of possession” and does not control the work site.  The owner’s agent or general contractor is responsible for the work site.  However, where the injured client works for the “G.C.”, it is necessary to determine if another company caused the accident.  That is because the injured worker  of the G.C. cannot sue his employer, the G.C.

Sometimes that determination can be made only during discovery in the case.

Here is a case example:

Henry Jones was the foreman for Apex Construction.  Apex was reconstructing the mens bathrooms in one of the Rikers Island buildings.  The Rikers  jail complex is owned by the City of New York.

Apex was the general contractor.  It hired a subcontractor, Superior Contractors, to do some of the work, such as demolition and painting.  Superior hired another sub-contractor, Ironman Construction, to do some of Superior’s work.

On the day of his accident, Jones went to inspect a bathroom which had been demolished down to the steel floor joists.  He walked on a joist.  Someone had painted the joist, and it was slippery.  Jones slipped and hit the wall with great force.  He sustained back injuries.  He underwent surgery, and he was unable to return to work.

Apparently, someone painted the joist shortly before Jones entered the room.  Jones as the foreman of the G.C. said that painting should not have been done at that early stage of the work.  The question was who did the painting?

Both “subs” denied doing the work.  Their work records indicated no painting.  We needed to prove that one of the subs did the work.  If we could not prove this, then Jones would not recover.  

The evidence pointed to Ironman Construction as having done the painting.  There was testimony from Jones’s co-worker that Chauncey Hill, a painter from Ironman, was seen in the area in a “haz-mat” suit.  Hill would wear a haz-mat suit when working in the demolished bathrooms since there had been leakage from waste water pipers.  Furthermore, Hill only did painting, and if he were working in the bathroom, then he was painting.  Also, Jones’s co-worker testified that there was “word” circulating at the site that the City inspector was snooping around and that the work site had better be in “ship-shape” condition. 

This circumstantial evidence was enough to cause Ironman to take responsibility and settle.

If you have been injured on the job at a construction site, please feel free to contact me for a free consultation at either 800-581-1434 or

Mark E. Seitelman, 2/28/11,

Getting a Recovery for Injuries from a Construction Accident; Labor Law 241 (6)

December 29, 2008

Many people in the construction trades are familiar with Labor Law 240 (1) which imposes liability on the building owner and general contractor for a height related accident.  However, there is another statute which also allows recovery and is very useful in a construction accident case.

If you have been injured in a construction accident, please call me at 800-851-1434.

Labor Law 241 (6) imposes liability on the land owner and general contractor for an unsafe work condition which is a violation of the state’s Industrial Code.  Ordinarily, the owner might not be liable for a construction accident if the owner has no control over the work site.  Generally, the owner is out of possession and control during the construction project.

For example, assume that the client, working for the general contractor, slips and falls on water.  The Industrial Code directs that the work place’s floor be free and debris and not be slippery.   The presence of water, which should have not been on the floor, may impose liability on the owner even though the owner had no control over the work site.

In another case the worker falls on debris left on the floor.  The Industrial Code mandates that the floors be kept free of debris.  Therefore, the owner and general contract0r would be liable.

   Construction defendants fight liability under Labor Law 241 (6).  For example, we had a case where a supervisor slipped on a freshly painted surface.  There was no warning sign of wet paint.  The joist was painted by another contractor.   The joist should not have been painted at that point in the work.  We claimed that the owner was liable under Labor Law 241 (6).  We claimed that the flooring was unduly slippery in violation of  the Labor Law.  The owner conceded that even if the paint were wet, liability would not be imposed under the statute because “slipperiness” is inherent in the work, i.e., painting a floor surface.  The issue was not tested in court in our case since we achieved an excellent settlement.

In many cases an accident may involve both Labor Law 240 (1) and 241 (6).  See our prior articles on Labor Law 240 (1), such as “Getting a Maximum Recovery from Construction Accidents; After the Cranes Collapsed–Now, More than Ever, Construction Workers Need Protection.”

We have handled many construction cases.  If you have been injured in a construction accident, please call me at 800-581-1434.

Mark E. Seitelman, 12/29/08,

Illegal Alien Workers Can Recover Lost Wages in an Accident Lawsuit

November 18, 2008

Undocumented alien workers can recover lost income in a personal injury lawsuit according to a recent decision, Coque v. Wildflower Estates Developers, No. 18365/01, App. Div., 2d Dep’t, Nov. 12, 2008.

In this case Mr. Coque, an illegal alien from Ecuador, immigrated to the United States in 2000.  He was hired as a construction worker.   Mr. Coque submitted a false Social Security card to his employer.  The employer did not check Mr. Coque’s immigration papers and other proofs of identity and eligibility for employment as required under the federal Immigration Reform and Control Act of 1986 and the state Labor Law.

   Mr. Coque became a paraplegic in a very serious construction accident.  He fell from a makeshift scaffold when a bundle of shingles weighing 80 pounds fell on him.  This caused the scaffold flooring to break, and Mr. Coque fell 25 feet to the basement.  The jury found in his favor and made an award for lost income of $102,000.  It also awarded substantial amounts for pain and suffering and medical expenses.  This was a Labor Law 240 (1) case.  See some of our prior post on Labor Law cases here and here.

Defendants argued that Mr. Coque’s submission of a false Social Security number prevents him from recovering lost income.

The Appellate Division refused this argument.  The employer’s failure to verify the employee’s work eligibility does not preclude the undocumented alien employee from recovering for lost wages.

We think that this is a sound decision.  The reality in New York is that a good number of unskilled construction workers are undocumented aliens.  If they were precluded from recovering lost income, especially when they had paid taxes, then such injured workers would be unduly punished in the event of a serious injury.  Such injured workers would be placed on the welfare rolls.  

It is noteworthy that the jury only awarded Mr. Coque $42,000 for past lost income and $60,000 for future income for a period of 5 years.  The man became a paraplegic and had no hope of returning to work!  This award appears to be rather small in view of the facts, but the appellate court sustained it.  My guess is that jury may have taken into consideration his illegal status and did not want to “reward” him on the lost wages part of the case.  Therefore, the jury limited future lost income to 5 years although it found future pain and suffering for 42.7 years.  Typically, the lost income on a paraplegic construction worker would be a very high number assuming that he had a good number of working years ahead of him.

We have handled many construction cases involving Labor Law 240 (1), lost income, pain and suffering, and medical expense.  We recently settled a construction case for $1,500,000.  If you have been involved in a construction accident please call me to discuss your accident at 800-851-1434.

Mark E. Seitelman, 11/18/08,,

Getting Recovery from a Construction Accident; New York City Has Responsibility for Crane Collapse and Construction Workers’ Deaths

November 17, 2008


The East 91st Street and First Avenue crane collapse.

It appears that New York City’s Buildings Department will have some responsibility for the May 30th tower crane collapse on East 91st Street.  Two construction workers were killed.   See New York Daily News article here.

This is a remarkable development in that typically the City is not a prime defendant in construction accident cases.

Months before the collapse the then head of the department’s Cranes & Derricks Department warned that the tower crane was at risk of “catastrophic failure.”  The crane had been repaired by a weld which failed.

Bethany Klein, Building Department's former chief of cranes and derricks, had deep concerns about the safety of  tower cranes (see e-mail below), including one that collapsed, killing two in May.  Bethany Klein, former Head of Buildings Department Cranes & Derricks Department.

A year prior to the collapse the crane had a crack in its turntable.  The Building Department head revoked the crane’s operating license and urged the owner to review the damage.  She opined that the crack was most likely caused by fatigue.  The crane owner at one point claimed that lightning had struck the crane.  The owner also claimed a lightning strike for another damaged crane.

Furthermore, when the cracked turntable was repaired, three additional fractures were discovered.  Ms. Klein, the Buildings Department official who noted these problems resigned before the May 30th collapse.

It appears that the City may be getting drawn into this case by reason of its negligent inspections and monitoring.

Typically, in a crane collapse case the City is not a key defendant.  Generally, the key target-defendants would be the building owner, general contractor, and crane contractor.  However, evidence is mounting that there may be a case against the City for negligent licensing, inspections, and monitoring.

We have handled many construction accidents.  If you or a family member or friend have been involved in a construction accident, please call me to discuss your case at 800-581-1434.

Mark E. Seitelman, 11/17/08,,

Getting a Recovery for Injuries in a Construction Case; A Fall from a Roof Which Is Not a Labor Law 240 (1) Case

October 23, 2008

In yesterday’s post we discussed a new case from the Court of Appeals where a volunteer worker falling from a ladder could not receive recovery under Labor Law 240 (1).  See our prior post, “A Volunteer Worker Injured in ‘Turkey Hunt’ Cannot Be Protected under Labor Law 240 (1).”

In that post we discussed that a volunteer could not sue under the statute.  A volunteer is not the same as a worker or employee who would get the statute’s protection.  Labor Law 240 (1) alllows an injured construction worker to recover against the general contractor and building owner without showing negligence.  The statute does not protect volunteers.

About 15 years ago we had a similar case involving a volunteer.

Joe was a family friend and patient of Dr. Vito, a well-known neurologist in the Hudson Valley.  Joe occasionally did household chores and construction work around Dr. Vito’s home and parents’ home, such as minor repairs, cleanning the yard, and driving the parents.  Joe did these chores both with and without compensation. 

Dr. Vito had Joe clean the dead leaves from the roof and gutter of Dr. Vito’s parents’ home.  Joe did not want to do this, but the doctor insisted that Joe go.  Joe felt obligated to do this chore for his friend and doctor, and he undertook the work.  Joe fell from the ladder.  He  sustained a very serious fracture involving surgery (open reduction with external fixation).

An interesting fact is that Joe was under Dr. Vito’s care for neuropathy in his legs.  He had problems standing and balancing.  He did not want to go up the ladder because he felt that he could fall, but Dr. Vito kept insisting.

Labor Law 240 (1) was unavailable because

  1. Joe was engaged in routine maintenance and cleaning rather than construction.  The statute covers only construction and demolition activities.
  2. Joe was an unpaid volunteer.

We did proceed against Dr. Vito on the theory that he placed his volunteer in a dangerous situation.  As Joe’s neurologist treating him for leg neuropathy, Dr. Vito knew that he should not have sent Joe on the ladder.  We also claimed that Dr. Vito was negligent in failing to “spot” Joe while Joe was climbing the ladder.

Fortunately, we were able to obtain a favorable settlement for Joe.

If you have been injured please feel free to call me for a free consultation at 800-581-1434.

Mark E. Seitelman, 10/23/08,,

Getting a Recovery for Injuries or Death in a Construction Accident; High Court Rules a Volunteer Worker Injured in “Turkey Hunt” Cannot Be Protected under Labor Law Law 240 (1)

October 22, 2008

New York’s highest court, the Court of Appeals, has ruled that a volunteer worker cannot receive the protections of Labor Law 240 (1) where he gets injured falling from a ladder while building a shed.  See Stringer v. Musacchia, decided Oct. 21, 2008.

We have written in prior posts about the special protections of the Labor Law available to construction workers injured on the job.  See some of our prior posts here, here, here, and here

This case presents an interesting set of facts which arise from an annual turkey hunt.

Defendant John Musacchia, Jr.,  is a well known bow hunter and has a cable television show, “Muzzy Bad to the Bone Bowhunting TV.”  He has invited celebrities to hunt with him for deer, moose, and wild hogs. 

In rural Greene County Musacchia has an annual turkey hunt on his property.  Plaintiff John Stringer, a hunter, and Musacchia entered an arrangement where Stringer would participate in the hunt at no cost to him in exchange for building a shed on Musacchia’s property.  The arrangement included free hunting and room and board for Stringer at the residence on the property.  For more than a week Stringer worked on the shed and hunted.    

While working on the shed Stringer fell from an extension ladder.  He tore his Achilles tendon which required a series of surgeries.

Stringer sued Musacchia under the strict liability provisions of Labor Law 240 (1) which provides a certain recovery for construction workers hurt on the job from elevation related accidents.  The trial court ruled that the statute is applicable, that Stringer was a construction worker,  and that Stringer has proved liability.  Defendants appealed, and the Appellate Division reversed and ruled that Stringer was a volunteer and was not entitled to the statute’s recovery.  Finally, the Court of Appeals affirmed the Appellate Division.  Stringer’s case is dismissed.

In essence, the Court of Appeals ruled that Stringer was a volunteer, and the Labor Law protects workers and employees.  Labor Law 240 (1) does not protect volunteers.  The Labor Law does not protect one’s friends, neighbors, acquaintances, volunteers, and family members involved in construction.  Stringer provided a casual, uncompensated service to Musacchia.  For example, Musacchia did not supervise the work, he did not direct how the work was to be done, and he did not set a deadline for completion.  This situation does not rise to a worker-employer relationship.

This is part of the continuing trend of New York’s highest court’s conservative and restrictive interpretation of the Labor Law.

In our next post we discuss a similar case that we handled.

We have handled many Labor Law cases.  If you have been involved in a construction accident, please feel free to call me at 800-581-1434.

Mark E. Seitelman, 10/22/08,

%d bloggers like this: