On February 6, 2019, New York State’s Appellate Division, Second Department, granted Plaintiff’s motion for summary judgment on a Labor Law Section 240(1) claim involving a falling object.

In the case of Passos v Noble Constr. Group, LLC, 2019 N.Y. App. Div. LEXIS 877, 2019 NY Slip Op 00893, (2nd Dep’t. 2019), the Appellate Division reversed the lower Court’s denial of Plaintiff’s motion for summary judgment.

The application of New York’s Labor Law 240(1) often renders certain defendants in construction accident cases absolutely liable to the Plaintiff in situations where workers fall from a height, or if objects fall on a worker.

In this case, the Plaintiff was working at a building in Brooklyn, New York. The accident arose out of work on concrete form work, which the Court described as “a metal grid consisting of vertical posts and horizontal girders that hold plywood sheets in place while concrete is drying[.]”

When workers were disassembling the form work, it appears that support was taken away from a 4’ x 8’ piece of plywood, which then fell from the first floor ceiling. The plywood struck the Plaintiff, knocking him to the ground and allegedly injuring him.

The Court concisely explained the applicable law stating:

Labor Law § 240(1) imposes upon owners, general contractors, and their agents a non-delegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites…To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking … Labor Law § 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute[.] (citations omitted).”

The Court found that the Plaintiff established liability because he was struck by the plywood when he was walking underneath a work area. A co-worker stated that a vertical post had been removed, leaving the plywood unsecured. The co-worker also noted there was no caution tape to prevent workers from entering the area where the disassembly was occurring.

The Court acknowledged that not every falling object case is necessarily a Labor Law 240(1) violation. However, here the Court found that the opposition was not sufficient to defeat the motion. One defendant had testified that the accident “most likely” could not have happened the way it was claimed to have.

The Court found summary judgment was warranted in this scenario.


New York construction contractors must reckon with Labor Law 240(1) liability issues.

From an underwriting and risk management perspective, this case shows the importance of safety training and compliance when overhead operations are underway. It seems that here, the lack of caution tape in the area of concrete form work disassembly was an important factor in the Court’s consideration.