On Tuesday, October 25, 2011, in a 4-3 split decision, the New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., wherein our firm represents the defendants, declined to adopt the so-called same level rule, holding that recovery under Labor Law §240(1) may not necessarily be precluded where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. New York’s highest court’s decision expands the reach of the statute by eliminating the “same level” rule as a defense and is emblematic of its more recent decisions where the court has found that §240(1) applies even where there is no height differential. Rather, the court has shifted its focus to the force of the gravitational pull, as opposed to the number of feet or inches that the object fell.
In Wilinski, the plaintiff was demolishing brick walls, when two vertical unsecured plumbing pipes that rose out of the floor fell and landed on the plaintiff. The plaintiff and the base of the pipes stood on the same level. The pipes were metal, were four inches in diameter, stood 10 feet tall and had toppled over to fall at least four feet before striking the plaintiff, who is 5 feet 6 inches tall, when workers demolishing an adjacent wall caused the wall to collapse into the pipes.
The majority of the court held that Labor Law §240(1) was applicable because the plaintiff suffered harm that “flowed directly from the application of the force of gravity to the pipes” and rejected the interpretation of the statute that operates to categorically bar the worker from recovery under §240(1) where the worker and the base of the falling object stand on the same level. However, the court held that an issue of fact remains as to whether the plaintiff’s injuries were the direct consequence of the defendant’s failure to provide adequate safety devices.
A strong dissent noted that the majority “runs afield from this Court’s Labor Law §240(1) precedent” and found that the plaintiff’s injuries were not the result of an elevation-related risk and thus, the statute is not applicable. The dissent opined that it is of consequence and integral to the court’s interpretation of §240(1) that the base of the pipes was at the same level as the plaintiff and his work site.
There is no doubt that there is a trend in the Court of Appeals’ recent falling-object decisions and now in Wilinski toward a broader interpretation of §240(1) expanding its protection for injured workers, a trend that owners and contractors must certainly heed.