In a strange, yet well-reasoned decision, a Brooklyn judge recently dismissed the construction site accident claim of a worker who claimed that he sustained personal injuries when he fell between two wooden 2 x 4's that had been nailed together as a makeshift ramp between the curb and the road surface.

Here's why it's weird: the judge went out of his way to find that although the plaintiff was merely verifying that the drivers delivering materials to the worksite had proper identification (and therefore, was not actively involved in any construction), he was nevertheless covered by Labor Law 240(1) because he was "performing work necessary and incidental to the erection or repair of a building or structure." So, at this point of the decision, you would naturally assume that the Court was going to find in the worker's favor and allow his construction accident case to survive.

But that's not what the judge did.

Instead, the court found that "[plaintiff] was not using the subject ramp as the functional equivalent of an enumerated safety device for plaintiff's benefit in his work. Rather, [plaintiff] used the ramp as a step, or like a passageway, while exiting his pick-up truck, en route to "challenging" the driver of the green truck for union identification ... Even if plaintiff had used the ramp in the course of performing his other steward duties... the ramp would not fall under the purview of the statute."

In other words, even though the worker was protected by Labor Law 240(1) (for more on this topic, see New York Labor Law 240(1) - Who Is Protected By This Statute), his claim still failed because he could not prove that his injuries were proximately caused by a breach of Labor Law 240(1).

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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