Defense Win in Westchester County Labor Law Trench Case

Joseph Rava, Co-Chair of our New York Labor law practice, in Garnett Waite v. County of Westchester (S. Ct Westchester County) defeated plaintiff’s summary judgment motion on his Labor Law Sections 240(1) and 241(6) claims and won summary judgment on plaintiff’s negligence, Labor Law Sections 200, 241(6), and 240 claims in a case involving a worker who claims he fell into a trench while guiding a septic tank into the trench.  The plaintiff alleges he was injured, while working at ground level and assisting with the placement of a septic tank into an excavation at the project.  While he was holding one of six taglines attached to the concrete tank that was being lowered into an excavated pit, plaintiff slipped on soil and slid into the excavation. On behalf of our client we argued, with the support of a client affidavit and an expert affidavit, that plaintiff was exposed to usual and ordinary dangers of a construction site, was not subjected to a gravity related risk covered by Labor Law 240(1), could not establish violations of any Industrial Code rules as a predicate necessary to trigger Labor Law Section 241(6) liability and could not establish that the defendants were negligent or violated Labor Law Section 200. The court agreed with our arguments and supporting case law and found that the plaintiff was subject to the usual and ordinary dangers of a construction site and Labor Law Section 240 did not apply.  The court, in finding that Labor Law Section 241(6) and Industrial Code Rule 23-1.7 (d)(1) “Slipping hazards”  were not violated, agreed with our argument that plaintiff did not fall into a “hazardous opening” as contemplated by the regulation and that Industrial Code Rule 23-1.7(b) does not apply to these facts. On the Labor Law Section 200 and common law negligence claims, the court found that the defendant established through the client’s affidavit that the defendant did not observe any unsafe conditions on the site before the date of the occurrence and did not direct or control the work of the plaintiff.