Worksite Owner Maybe Liable for Dust That Falls Into Worker's Eye: NY Court

Granted, at first blush the trial court's decision in this construction site accident case in Galarza v. Lincoln Center for the Performing Arts seems bizarre. But if you read the statute's language carefully - which this judge did - it is not that difficult to understand why the court ruled the way it did, and refused to dismiss this worker's personal injury lawsuit.

In this case, the plaintiff was one of several workers that was employed to do demolition work at the defendant Lincoln Center for the Performing Arts. In the process of performing that work, some asbestos-laden dust fell into his eye, and as a result, he lost the vision he had in that eye.

My immediate, instinctive reaction when seeing this set of facts was that this case did not fall within the ambit of the worker safety statutes of New York's Labor Law. And, to a large extent, the court felt the same way, as it dismissed most of this worker's claims. But there was one claim that the court refused to dismiss: the plaintiff's claims grounded in Labor Law 240(1) - the statute that holds owners liable for worker's injuries that occur as the result of a gravity-related risk.

Strange, isn't it? I would have assumed that the gravity-related risks the statute was talking about dealt with - at a minimum - heavy things falling on people; but dirt? Really?

Consider the court's reasoning, though:

"Here, it is undisputed that a plaintiff was injured during the demolition, which is a protected activity under the statute (Labor Law §240 [1]; see also Martinez v. City of New York, 93 NY2d 322, 326 [1999]). It is also undisputed that plaintiff's work involved elevation-related risk since at the time of the accident, plaintiff was standing on a ladder below another worker who removed the panel from the 20-foot high ceiling and handed it down to plaintiff. Further, plaintiff was injured during the lowering of the panel, and thus, the falling object into plaintiff's eye arguably constitutes injury "related to the effects of gravity" (Suwareh v. State of New York. 24 AD3d 380, 381 [1st Dept 2005], quoting Rocovich, 78 NY2d at 514). And, the record supports the claim that no protective device designed to catch the falling pieces of asbestos dirt was used in connection with plaintiff's work."

Maybe the decision isn't so strange after all.