De Minimis Height and How It Relates to New York Labor Law Section 240(1)

ALBANY, NY, January 12, 2011

The core objective of Section 240(1) is to require that workers have adequate safety devices to protect them from being injured by falling from one level to another or when some material or object falls resulting in injury. There must be some measurable distance between the worker and the lower level or the object which may fall onto the worker. Section 240 of the Labor Law does not have any minimum height requirement as a condition for the statute to apply to any given case. Yet, the statute will not apply to every case, only those which situations which give rise to the ultra hazardous activities of working at heights.

How to tell which events fall within the scope of the statute has always presented problems for contractors, insurance companies, safety personnel as well as judges and lawyers. The Court of Appeals instructs us to look at the specific circumstances surrounding the accident in order to determine if this accident scenario was "the type of accident which the legislature intended to be covered by the statute." In order to answer this question judges will look to the lawyers to describe the circumstances surrounding the accident and to cite to prior cases (a precedent ) which involved the same kind of facts.

A common tactic of insurance company lawyers is to describe the distance the worker or the object fell as being a "de minimis height." This is the Latin word for miniscule, a word that no longer has a legitimate place in the English language, but, many years ago, a court decided that when a worker sustained a minor injury after falling only a few inches the case did not come within the scope of Section 240 because it was not the type of situation that section 240(1) was intended to protect against. In explaining his reasoning the Judge referred to the distance the worker fell as being de minimis. This case was repeatedly cited until it became popular to refer to it by its result rather than the logic of its holding. If the court concluded that the distance the worker fell amounted only to a deminimus height, then section 240 would not apply.

In reality this is a flawed argument. De minimis does not describe a precise distance, it can mean 18 inches in one case and 2 feet in another. In any event it brings us back to the starting point of this argument. No matter how small or large de minimis really is, it can't be used to determine if the statute applies to a given fact pattern because section 240 has no minimum height requirement. The argument misdirects the court's attention toward measuring distance rather than looking at whether the worker was exposed by the dangers presented by gravity.

This argument must be anticipated by the worker's lawyer and defused in the very early stages of the litigation. The fact pattern must be described in terms that will convey the dangers to which the worker was expose to and that the injury resulted from the failure to provide the worker with an adequate safety device. Of course, knowing the correct case to cite to the court to support the worker's your position will also help defuse the de minimis height defense.

One such case that emphasizes the problems created by using the de minimis height argument is Runner v. New York Stock Exchange, Inc. 13 NY3d 599 (12/17/09). Runner was injured in a construction accident when an 800 pound reel of cable was being lowered down just a few steps to a lower landing. The Court rejected the notion that the distance the reel had descended was de mininis and therefore not covered by section 240, stating that due to the weight of the object, considerable force would be generated even over a relatively short distance, calling for the safety devices demanded by the statute.

If you or a loved one has suffered an injury on or around a construction site, contact a New York construction accident attorney at Powers & Santola, LLP.

Website: http://www.nyconstructionaccidentlaw.com