Does Labor Law Make It Mandatory to Provide Safety Devices to Workers Toiling on a 'Structure' ?
In Kyle v. City of New York, 268 AD2d 192 (1st Dept 2000), the plaintiff and other workers were engaged in affixing a prefabricated platform to the underside of the bridge, which after installation was to serve as a work surface for bridge repairs.
The platform, which was installed with the use of two cranes, buckled and pitched over, causing death and serious injury to the workers.
The court reasoned that, although the platform was part of the work in progress, plaintiff could only have performed the work while standing on the platform itself, and as no alternative scaffolding was provided, "the platform constituted a scaffold within the parameters of Labor Law 240 (1)" (at 198).
Nevertheless, the court found that this "scaffold" was ineffective as a safety device since it "proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to ... his person." (Id.)
In addition, relying on a number of earlier cases cited in Alderman v. State of New York (139 Misc 2d 510 [Ct Cl 1988]), the Kyle panel stated and held that (at 197):
"We agree with the reasoning of the Court of Claims and note that other cases have held that Labor Law 240 (1) applies even in those situations when the scaffold which is alleged to have failed was in the process of being dismantled or constructed."
What is not expressly articulated, but is implied, in Kyle is that a "scaffold" which is in the process of being constructed or dismantled also clearly qualifies as a "structure" within the purview of section 240 (1), and as with buildings under construction, alteration, or demolition, a worker toiling on a "structure" must be provided with "other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
If the platform on which the plaintiff was standing constituted a "scaffold" (and thus itself a safety device), it still proved, as stated in Kyle, inadequate to give proper protection.
However, if the platform was not serving as a scaffold, and was merely part of a "structure" being dismantled, section 240 (1) was still violated since plaintiff was not provided with at least one of the other safety devices required by the provision of the Labor Law.