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THE MAJORITY HELD THE INSTALLATION OF AN AIR TANK ON A FLATBED TRAILER WAS NOT A COVERED ACTIVITY UNDER LABOR LAW 240(1); THE DISSENT ARGUED THE TRAILER WAS A “STRUCTURE” WITHIN THE MEANING OF THE STATUTE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240(1) when he was injured. Plaintiff, a diesel technician, was injured installing an air tank on a flatbed trailer at a recycling plant. The majority concluded the plaintiff was not involved in construction, renovation or alteration of the recycling plant. The two dissenting justices argued that the truck was a “structure” within the meaning of the Labor Law:

… [P]laintiff, a certified diesel technician, was injured while installing an air tank on a flatbed trailer on the premises of a recycling plant. Inasmuch as plaintiff was “engaged in his ‘normal occupation’ of repairing [vehicles] . . . , a task not a part of any construction project or any renovation or alteration to the [recycling plant] itself,” he was not engaged in a protected activity within Labor Law § 240 (1) at the time of the accident … .

From the dissent:

“Labor Law § 240 (1) provides special protection to those engaged in the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” … . “Over a century ago, the Court of Appeals made clear that the meaning of the word ‘structure,’ as used in the Labor Law, is not limited to houses or buildings . . . The Court stated, in pertinent part, that ‘the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner’ ” … .. … [W]e [have] held that it was error to dismiss a Labor Law § 240 (1) claim because the crane upon which the plaintiff’s decedent was working fit “squarely within” the definition of a “structure” as set forth by the Court of Appeals … . We have also held that a plaintiff engaged in the conversion of a utility van into a cargo van “was engaged in a protected activity at the time of the accident” and that the van was “a structure” … . “Indeed, courts have applied the term ‘structure’ to several diverse items such as a utility pole with attached hardware and cables . . . , a ticket booth at a convention center . . . , a substantial free-standing Shell gasoline sign . . . , a shanty located within an industrial basement used for storing tools . . . , a power screen being assembled at a gravel pit . . . , a pumping station . . . , and a window exhibit at a home improvement show” … . Here, the flatbed trailer upon which plaintiff was working also fits “squarely within” the definition of a “structure” … . Stoneham v Joseph Barsuk, Inc., 2022 NY Slip Op 06583, Fourth Dept 11-18-22

Practice Point: Plaintiff was installing an air tank on a flatbed trailer when injured. Because the activity was not connected to a construction site, the majority concluded the accident was not covered under Labor Law 240(1). The two dissenters argued the flatbed trailer met the definition of a “structure” within the meaning of Labor Law 240(1).

 

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