Partial Fall Through Interior Of Scaffold Not Enough For Liability Under New York Scaffold Law

While constructing railroad tunnel emergency ventilation facilities in Manhattan, a drill running foreman who worked for the project’s general contractor partially fell through a 14-inch by 16-inch hole while working on a scaffold.  He brought suit against the project owner and the project owner’s safety monitor.  The U.S. District Court for the Eastern District of New York granted summary judgment to the defendants on the plaintiff’s claims under New York State Labor Law § 240, which imposes a form of strict liability on all parties involved in the construction of scaffolds and other elevated platforms if a statutory violation proximately causes injuries.  Here, the court found that a worker’s fall through a relatively small hole that happens to be at an elevation is “the type of ordinary and usual peril a worker is commonly exposed to at a construction site” and does constitute liability under New York’s scaffold law.  The danger from the hole in which the plaintiff fell was not the danger from the height differential between the platform on which the plaintiff was working and a lower surface.  The court did allow the plaintiff’s claims under New York State Labor Law § 200, which codifies the common law theory of negligence, to continue.  The court concluded that a photograph of the site a few days before the incident showing the hole in question was enough evidence to withstand summary judgment on the claims against the project owner because as the site owner, the question with respect to whether liability is imposed relates to whether the owner had notice of the alleged dangerous condition.