By Justin Domenech, Esq.

labor law victory

You’ve seen this before, a worker at a busy construction site alleges that they fell as a result of a dangerous condition in the course of his work.  There are no witnesses and the dangers claimed are just broad restatements of the New York State Labor Law.  Since there were no witnesses, there is little to no investigation to build a defense around.  They claim that the injury is permanently disabling, and that your client faces seven figure damages.  Even worse is the fact that the evidence, which is solely in Plaintiff’s control, is often frustratingly inconsistent.  On one occasion, it is alleged that it was a fall through an ‘unprotected opening’, in another, it is a trip or slip on uneven ground with an ‘elevation differential.’  Maybe work materials or debris were a factor, but it is unclear as ‘it all happened so fast.’   Either way negligence, Labor Law §§ 200, 240(1) and 241(6) are inevitably alleged against your client.  Now what?

In the recent total dismissal obtained by Gartner + Bloom in the Supreme Court for Kings County we countered that scenario by thorough lawyering, and achieved a Decision premised on the Integral to the Work Defense.   As noted by the Court, ‘the integral-to-work defense applies when eliminating an alleged defective condition would be impractical and contrary to the work at hand, and inconsistent with accomplishing a task that was an integral part of the job.’ See Salazar v. Novalex Contr. Corp., 18 NY3d 134 (2011).   Here, Plaintiff argued that our clients, respectively the Owner and a Construction Manager for the project, were liable for allowing him to fall into a ‘six foot deep/3-foot-wide unprotected hole or trench’, and failed to provide him mandatory fall protection, secure dangerous openings, or place caps on the rebar so to prevent impalement.  To counter this, we opted against simply denying Plaintiff’s narrative based on weaknesses alone, and instead we co-opted it to provide necessary defense context.

To achieve this, we developed the record in the first instance, utilizing the Workers’ Compensation Board Accident Reports, Plaintiff’s deposition testimony, and the testimony of the Supervisor he identified as being present when his accident occurred.  We were also able to obtain his Workers’ Compensation Board claim testimony, all of which featured exposable flaws.  For example, we made clear through the evidence that: our clients did not control the subcontract work the accident arose out of; the work was at grade; the excavation Plaintiff was pouring concrete into was no deeper than four feet and Plaintiff’s actual testimony did not establish otherwise; Plaintiff was never impaled by unprotected rebar; and there was no evidence of missing and necessary safety measures. We established the fact that the ‘missing’ protective cover for the ‘hole’ Plaintiff argued would have prevented him from actually performing his job: pouring the concrete into the excavated foundation.  Thus, it could not be a required safety device.  See Maldonado v. AMMM Props. Co., 107 AD3d 954 (2nd Dep’t 2013).  Ultimately then, our defense hinged on the Labor Law’s acknowledgement that some work risks are reasonable, and to extinguish them would simply impede the ability to perform necessary construction activities. 

Gartner + Bloom’s defense here overall shows why the Integral to the Work Defense can protect a client who at first glance appears disadvantaged.  In contrast to other basic Labor Law defenses, our dismissal shows that the Integral to the Work Defense can yield real results if pursued by a determined team.  Results achieved not by rejecting Plaintiff’s narrative, but rather by giving it necessary context in relation to our necessary Clients’ work.