Appellate Division, First Department, in the Case of Torkel v. NYU Hospitals Center, et al., Modified the Order of the Trial Court by Dismissing Plaintiff’s Labor Law §240(1) Claim
June 30, 2009

On June 25, 2009, the Appellate Division, First Department, in the case of Torkel v. NYU Hospitals Center, et al., modified the order of the trial court by dismissing plaintiff’s Labor Law §240(1) claim holding that a plywood ramp that bridged the gap between the curb and the roadway, a height of approximately 12-18 inches, was not of a sufficient elevation to trigger the extraordinary protections of Labor Law. Similarly, the Court dismissed the §241(6) claims finding that an Industrial Code section which applied to ramps used “as the means of access to working levels above and below ground” did not apply in this instance. Moreover, the Industrial Code section that applied to ramps used by “wheelbarrows, power buggies, hand carts or hand trucks” did not apply to “wheeled dumpsters.”

In Torkel, New York University (“NYU”) entered into an agreement with HRH Construction (“HRH”) for the construction of a new facility at its medical school. The terms of the agreement required HRH to hire subcontractors to perform the work, which included the task of keeping the work site “free at all times from unreasonable accumulation of waste material or rubbish” resulting from the construction. HRH hired Rite-Way Internal Removal, Inc. (“Rite-Way”), to perform “demolition” work, specifically, hauling the debris away from the project by truck.

On March 19, 2004, Plaintiff, an employee of Rite-Way, was dispatched to the work site to haul a load of debris. Plaintiff was injured while rolling a container filled with nearly 250 pounds of debris down a makeshift plywood ramp that bridged the gap between the curb of the sidewalk and the street. The ramp collapsed and the plaintiff was injured while he tried to keep the container from tipping over. The plaintiff stated that the ramp was elevated “[a]nywhere between 12 and 18 inches, give or take a few.”

Plaintiff commenced an action against NYU and HRH asserting claims pursuant to Labor Law §§240(1), 241(6) and 200 and for common law negligence. Rite-Way was joined as a third-party defendant. The Defendants’ motioned for summary judgment seeking the dismissal of all claims. The Defendants argued that plaintiff was not “engaged in an activity requiring protection” under 240(1) because the ramp did not present an elevation-related hazard where it was merely 12-18 inches from the ground. The defendants further argued with respect to the §241(6) claim that the three alleged violations of the Industrial Code were inapplicable. With respect to §200, the defendants argued that plaintiff failed to proffer evidence that they were responsible for, or aware of the unsafe condition created by the ramp. The defendants’ motions were all denied, with the exception that defendants were granted summary judgment on plaintiffs 241(6) claim predicated on Industrial Code § 23-2.1(b). An appeal followed.

The Appellate Division, with two justices concurring in part and dissenting in part, reversed the lower court. The Appellate Division dismissed plaintiffs 240(1) claim, agreeing with the defendants’ argument that the 12-18 inch elevation of the ramp did not present an elevation-related hazard as required by the statute. Furthermore, the Court reversed plaintiff’s remaining §241(6) claims predicated on Industrial Code (12 NYCRR) §§ 23-1.7(f) and 23-1.22(b). Section 23-1.7(f) applies to ramps used “as the means of access to working levels above and below ground.” The Court held that the ramp in the instant matter merely bridged the height gap between the sidewalk curb and the road and, therefore, did not provide access to an above- or below- ground work area. Section 23-1.22(b) applies to ramps used by “‘motor trucks or heavier vehicles,’ ‘wheelbarrows, power buggies, hand carts or hand trucks’ or by ‘persons only.’” The Court strictly construed the regulation and held that where the ramp in question was used “as a means for workers to move wheeled dumpsters,” it is not applicable. The Court found an issue of fact as to the Labor Law § 200 claim, holding that the defendants failed to meet the initial burden to show a lack of control over, or awareness of the dangerous condition.

The two dissenting Justices argued that plaintiffs §200 claim should have been dismissed as well and concurred in the dismissal of 240(1) and 241(6) for additional reasons. With regard to § 200, the dissent argued that because plaintiff testified that his activities were completely controlled by Rite-Way and that plaintiff offered “no evidence as to how the piece of plywood came to be placed where it was,” the defendants motion for summary judgment on plaintiff’s § 200 claim should have been granted.

In sum, based on the First Department decision, a ramp that is merely 12-18 inches high is not considered an elevation-related hazard sufficient to trigger the protections of Labor law 240(1).

A copy of the First Department decision is available (PDF) for your reference. Any questions may be directed to Robert M. Leff.