Skip to Content
Serving All of Western New York

Labor Law Decisions in February by Appellate Division Fourth Department Apply ‘Falling Object Test’ with Predictable Results


The Fourth Department issued four decisions in February, each of which required the application of the Labor Law's 'falling object test'.

Generally, a construction worker who is struck and injured by a falling object is entitled to compensation under the Labor Law if he can establish two elements:

  1. The object that struck him was being hoisted or secured and fell anyway, or that the object should have been secured but was not.
  2. The object fell because of the absence or inadequacy of a safety device meant to guard against a risk of the object falling from a height.

In R. L. Floyd v. New York State Thruway Authority, decided February 6th, a worker was struck by a falling rigging cable while he was returning to his work area at a painting project on the Grand Island Bridge. The Court affirmed a lower court's judgment after trial in favor of the injured worker.

The case of Zimmer v. Town of Lancaster, decided February 6th, involved a worker who fractured his wrist when the locking mechanism of an extension ladder failed to keep the upper extension from retracting while the worker was trying to set the ladder in place. Although the distance that the upper extension 'fell' was only a short distance, the 'falling object test' was met and the worker was entitled to compensation. It turned out that the ladder had been left out for several days in cold weather and the locking mechanism was covered in ice, making it prone to slipping out of place.

However, not all objects 'fall' as a result of the failure to provide one of the safety devices. When it is not clear that one of the safety devices listed in the statute would have stopped the object from falling, the protections provided by the Labor Law may not apply. In the matter of Marguerite Mitchell as Administrator of the Estate of John K. Mitchell v. NRG Energy, decided February 13th, the plaintiff was tragically killed when he was crushed between the dump box and frame of a dump truck that had lowered suddenly while he was attempting to unload debris from a demolition project. The question before the Court was whether one of the devices listed in the Labor Law would have prevented the accident. Because neither side could convince the Court of its arguments in favor nor against, the case was sent to the trial court for further proceedings. Finally, the Fourth Department reminded us that when safety devices are in fact provided and the worker is instructed to use them but does not, the worker may be at fault for his own injuries and he will have no remedy under the Labor Law.

In Banks v. LP Ciminelli, a worker was injured when a bundle of insulation he attempted to hand off to an above co-worker fell onto him. However, it appears that the worker had not used a boom lift that was available for the very purpose of getting insulation bundles to co-workers above. While the Appellate Court returned the case to the trial court for further proceedings, if it is determined that the boom lift was available and the worker chose to ignore directives to use it, his Labor Law claim is likely to fail.