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 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).

We Obtained a $1,500,000 Settlement for Construction Accident; the Fall Down the Chimney Case

December 8, 2008

We obtained a settlement of $1,500,000 for a construction accident.

Our client worked for a roofer  which was working on the roof of St. Francis College in Brooklyn.  The client was walking on the roof when he fell through an unmarked and unbarricaded chimney shaft which had been abandoned.  The shaft was covered with a mere piece of plywood.  Our client, a strapping man of 250+ pounds, had no way of knowing that the thin piece of plywood covered an abandoned chimney.

   The client said that when the plywood collapsed beneath his feet, the next thing that he realized was that he was falling down a shaft.  He was terrified.  He recalls seeing the hole of light above get smaller and smaller as he fell deeper and deeper down the chimney.

The client fell 90 feet.  It was a miracle that he was not killed.  He did not hit the bottom because he got wedged in the shaft before reaching the basement.  The Fire Department had to rescue him. 

The client sustained multiple injuries including a degloving of part of the calf, skin grafts, a torn meniscus with surgery, and low back injuries.  The client has been unable to return to work.  He spent a couple of months in the hospital.

We claimed that defendant college and general contractor were liable under Labor Law 240 (1) in that they failed to provide adequate safety measures regarding the unused chimney. 

The college and the general contractor, Turner Construction, were represented by the same insurance company and same law firm.  They vigorously defended the case on all fronts.  For example, defendants claim that the shaft was adequately protected and marked-off by sandbags.  Turner’s supervisor said that he saw this on Saturday.  Yet someone removed the protection.  Turner suspected that either plaintiff or a co-worker of the client removed the protection on Monday in order to use the chimney to hoist material to the roof.

Turner Construction also claimed that a good number of the client’s injuries were pre-existing.  Furthermore, defendants hired a vocational and rehabilitation expert who opined that the client was not totally disabled and could work in a less physically taxing job, such as a security guard at a desk.

The case was settled in a private mediation before Mediator Ronnie Bernon Gallina of JAMS.  She is one of the best in the business.   I and Michael Goldfarb represented the client.

We have written extensively about construction accidents and Labor Law 240 (1) in prior posts.  See, for example,  “Getting a Maximum Recovery from Construction Accidents” and “Falling Objects, Construction Accidents, and Labor Law 240 (1)–The Narducci Rule.”

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

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 12/8/08,

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 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,

Falling Objects, Construction Accidents, and Labor Law 240 (1)–The Narducci Rule

September 28, 2008

Many of our construction worker clients are familar with Labor Law 240 (1).  It imposes strict liability on the building owner and general contractor in the event of a failure of an elevation device, such as a scaffold, elevator, hoist, platform, etc.  This has been discussed in our prior posts, such as here and here.

However, there is an exception to the rule under a Court of Appeals case, Narducci v. Manhasset Bay Associates, 96 NY2d 259, 727 NYS2d 37 (2001).  Narducci changed the landscape of Labor Law cases.

I.  The Narducci Case

Before, the Narducci decision courts permitted injured parties to recover if they were struck by a falling object on the job site.  Narducci  changed this.  

In Narducci  the worker was standing on a ladder when a large pane of glass from an adjacent window frame fell and struck his arm.  The window was part of the pre-existing building and not part of the construction work.  The Court of Appeals held that this accident did not fall within Labor Law 240 (1) in that the falling window was not part of the renovation.  Furthermore, the window pane fell out of its frame, and it did not fall while being hoisted or lifted or elevated by one of the enumerated elevation devices of the statute.

Thus, a falling object may not fall within Labor Law 240 (1) unless it falls while being lifted or hoisted during the construction. 

In another case decided in the Narducci decision, an electrician was standing on a ladder attaching light fixtures to a hung ceiling.  The worker was standing on a ladder, and he had to snap-in the light fixture.  The worker was descending the ladder, and a fixture that he snapped-in had become loose.  He tried to catch it, but it cut his arm and wrist.  The fixture fell while the worker was on the ladder.  The worker was not caused to fall from the ladder.  Again, the court noted that the falling object did not fall while being lifted or elevated during construction.

The key to both cases is that the falling objects did not fall while being elevated.  There was no failure of an elevation device.

Scaffolds by Munzerr.

II.  A Couple of Post-Narducci Cases 

The Court of Appeals has carved-out a couple of exceptions to Narducci.

In Qutar v. City of New York, 5 NY2d 731 (2005), a worker was injured by an unsecured dolly which fell 5.5 feet form its place of storage.  This dolly was used in the construction.  The court stated that liability under 240 (1) was not restricted to only objects being hoisted or lifted during constructed.  This case fell within the statute because the dolly was the object that required securing for the purposes of the construction work.

In  a recent case, Quattrocchi v. F.J. Sciame Construction Co., 2008 NY Slip Op. 06736, the Court of Appeals held that Labor Law 240 (1) liability is not restricted to cases where the object is being either hoisted or lifted.  In this case the worker was struck by falling planks which had been placed over open doors as a scaffold to facilitate installation of an air conditioner.  The court held that 240 (1) was applicable.   

III.  How Things Have Change

Narducci  changed construction law.  Before an injured worker could impose Labor Law liability if an object fell on him from a height.  After this case, the mere falling of an object from a height was not enough to get 240 (1) liability.

It seems that the falling object must be part of the work.

For example, before Narducci  we had a case where a cermanic tile fell from the ceiling.  The tile had been installed some time before it became loose.  The tile struck our client.  We were able to obtain recovery under Labor Law 240 (1).  Narducci  eliminated this type of case. 

We had a case where a worker was injured by a pulley which failed.  Before Narducci  this would have been a perfect case in that liability would have been found in favor of the client, and the only issue would have been the amount of damages.  However, our case was dismissed on the basis of the Court of Appeals decision which came down shortly before our case was to go to trial.

In our case the worker, a general laborer, was struck by a pulley which fell from a height.  This occurred in the Warner Bros. store which was close to completion.  The pulley was not being used in construction in that the store was ready to open.  It was to be used to hold-up a decorative banner depicting a Warner Bros. cartoon character.  On the basis that the pulley was neither hoisting nor lifting construction materials and was purely a decorative element, the court dismissed our case under Labor Law 240 (1).


A construction case and the applicability of Labor Law 240 (1) rest upon a sound work-up of the facts and the law.  In the right case, we may be able to establish Labor Law liability within the framework of the Narducci case.

if you have been involved in construction accident, please feel free to discuss it with me at 800-581-1434.

Mark E. Seitelman, 9/28/08,

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