“Elevation-related” is of course the key element under § 240(1) of the Labor Law. The Digest meets this statute often. It’s designed to require safety devices for work at elevations and if such a device is found necessary to the work and isn’t provided, the worker injured by its absence gets a free ride on the issue of liability, which becomes absolute in that case.

This plaintiff was doing demolition work during renovation of a Brooklyn apartment building. One of his tasks was to rearrange debris in a six-foot-high dumpster to clear more room in it for more debris. To do this, he stood on the top of the dumpster with one foot on its ledge and the other either on another part of the ledge or on the debris already in the dumpster. He lost his balance, fell, and was injured.

Does this qualify as an elevation-related injury under § 240(1) such as to have mandated the use of some device of the kind enumerated in that statute, such as a scaffold? Maybe, holds the Court of Appeals; resolution of the issue requires further proof on this record, in which both sides moved for summary judgment but neither showed enough to get it. Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 937 N.Y.S.2d 157 (Dec. 20, 2011).

The lower courts thought the defendants – the owner of the building and its manager – had earned it, but the Court of Appeals says no, distinguishing its 2005 Toefer decision (Digest 548), in which the plaintiff fell from a flatbed truck about five feet high. The worker in that case might reasonably have been “expected to protect himself by exercising due care in stepping down”, the Court now explains in an opinion by Judge Pigott, distinguishing Ortiz because the particular task itself – rearranging the debris in the dumpster – required the worker “to stand at the top of the dumpster, six feet above the ground, with at least one foot perched on an eight-inch ledge”.

The defendant didn’t show that standing in that way was not required for the task, or that a § 240(1)-type device wouldn’t have avoided the fall. That’s what the defendant had to show to earn summary judgment, and it failed to.

But neither did the plaintiff show entitlement to summary judgment on its cross-motion. He would have had to show – as a matter of law – that he was “required to stand on or near the ledge” of the dumpster to do his job, and his cross-motion papers didn’t establish that.

Hence neither side makes out the kind of matter-of-law showing needed to put a summary judgment end to the case.

Citing here its 2001 Narducci decision (Digest 499), the Court says that on the Ortiz record each of these matters is a triable issue of fact, including a showing by the plaintiff, if he wants to win under § 240(1), that “a safety device of the kind enumerated in § 240(1) that could have prevented his fall” exists but was not furnished by the defendants.

New York State Law Digest. No. 627 March 2012.  Editor: DAVID D. SIEGEL. New York State Bar Association, One Elk Street, Albany, New York. © Copyright 2012