"Forest for the Trees"
Michael J. Shields, Esq.
Partner at McCormick & Priore, P.C., keeping you updated on recent developments in New York’s Labor Law. Focused on litigation including New York's Labor Law, premises liability and automobile accidents.
“Save the Trees” Viable Solution to Labor Law § 240(1) Causes of Action
Procedural History & Facts:
In a recent decision, the Appellate Division, Fourth Department affirmed a Supreme Court, Niagara County decision that denied defendant’s motion for summary judgment to dismiss plaintiff’s complaint and granted plaintiff’s motion for summary judgment as to Labor Law § 240(1).
In Ells v. City of Niagara Falls, 2024 NY Slip Op 04876, plaintiff commenced this Labor Law cause of action seeking damages for injuries he sustained when a tree that was being cut down by a coworker fell and struck him.? Plaintiff’s employer was the general contractor on the defendant’s (and municipal entity’s) roadway rehabilitation project.? The project included the erection of a pedestrian bridge, and, at the time of the accident, plaintiff and his coworkers were removing trees to ready the site for construction of the pedestrian bridge.?
The Fourth Department rejected defendant’s argument, and acknowledged:
Although trees are not structures and tree removal in and of itself is not an enumerated activity within the meaning of Labor Law § 240(1), tree removal performed to facilitate an enumerated activity does come within the ambit of [the] statute.” See Krencik v. Oakgrove Constr., Inc., 186 A.D.3d 1006, 1007 (4th Dep’t 2020). ??
Plaintiff also submitted an uncontroverted expert affidavit opining that the use of a safety device to control the descent of felled trees was necessary and consistent with the objective of the work being performed at the time of the accident, and that defendant failed to raise a triable issue of fact with respect to whether the tree removal work fell into a separate phase of the construction, which is easily distinguishable from the other parts of the larger construction project.? Plaintiff established that the tree removal work was ancillary to the larger construction project that was “ongoing at the time of the accident.”
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Commentary:
It’s important to assess whether the activity that plaintiff is engaged in at the time of the subject incident falls within the ambit of the larger construction project in order for it to be brought under the projections of the Labor Law.?? It appears in this case that preparing the site, in this case, by felling trees, is akin to breaking ground on a construction site in a more urban environment, bringing an activity that in and of itself would not be protected, within the ambit of the statute.
Links:
The Ells decision can be found here.
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