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Jon Lichtenstein

Jon Lichtenstein Obtains Dismissal of Construction Labor Law Claims in Foot Crush Case

Plaintiff was performing demolition work on the roof of a Manhattan skyscraper when the 300 lb. cart of debris he was pulling up a ramp tipped over and crushed his foot claiming a permanent disability. The plaintiff brought Labor Law claims pursuant to 240(1) and four separate 241(6) claims based on Industrial Code sections 23-1.7(f), 23-1.11(a) and 23-1.22(b) and (c)(1) against the building owner, the owner’s managing agent and the construction manager.

We moved for summary judgment on behalf of the managing agent on the grounds that the Labor Law did not apply to our client since it was not hired to be the general contractor or construction manager and it did not represent the owner with respect to the construction, but merely was charged with overall building management. We argued that our agreement had a specific option for construction management which the owner had not exercised. We argued the fact that our client monitored the construction was an insufficient basis to find 240(1) liability.

We further argued that even if the Labor Law did apply, the Labor Law claims failed. With respect to the 240(1) claim we argued that the plaintiff did not fall from a height and the injuries were not the result of an elevation related risk. We argued that the cart falling onto plaintiff was not a risk related to gravity because the cart and plaintiff were on the same level albeit a ramp and that indeed, plaintiff was above the cart on the ramp when it fell. We argued that the cart was not being hoisted up the ramp and thus did not need to be secured.

With regard to the 241(6) claim based on Industrial Code 23-1.7(f), we argued it did not apply since the ramp in question was not providing access between two different work levels but was rather intended to move material up onto a gantry that was only 4-12″ above the roof surface.

With regard to the 241(6) claim based on Industrial Code 23-1.11(a) which requires lumber to be sound and not contain defects, we argued that plaintiff failed to describe any aspect of the ramp which was not only defective but could have caused the cart to tip over.

With regard to the 241(6) claim based on Industrial Code 3-1.22(b) we argued that the provision did not apply because the cart was neither a motor truck, a wheelbarrow, power buggy or hand cart and in any event the requirement that the ramp be supported so as not to have excessive deflection or spring did not apply because there was a support under the ramp. The Court dismissed this claim despite plaintiff’s claim that the ramp bounced up and down causing the cart to fall on him. The Court did not appear to find this claim credible merely noting the existence of the support under the ramp. The Court was apparently persuaded by our argument that the claim the ramp bounced was contrary to physics. While the 500 lbs. of weight between the cart and the plaintiff certainly would have deflected the ramp onto the 2 x 4″ support, we challenged plaintiff to explain what force would have caused it to rise up off the support completing the bounce. Plaintiff ignored our challenge to his own peril.

With regard to the 241(6) claim based on Industrial Code 23-1.22c)(1) we argued that the ramp in question was not a platform to unload a wheelbarrow and thus it did not apply to the case. The Court agreed with all of our contentions.