A New York City Construction Worker was Injured while performing Construction Work at the new 4 World Trade Center. The concrete worker was working as a form stripper at the construction of the new sixty-four story commercial tower.
The Construction Worker became Injured when a four by four he was removing from the ceiling fell or slid down and struck him in the ribs. The ground lessee of the premises hired a general contractor in 2008 to construct the new tower. The general contractor then hired a number of subcontractors to perform trade work at this construction site. This included concrete subcontractor that employed the concrete worker. This concrete subcontractor was hired to set and remove forms and pour concrete. The concrete worker’s job duties include removing the forms off the ceiling and walls after the poured concrete had dried.
On the day of his accident, the concrete worker’s supervisor directed him to take down four by four planks from the ceiling of an area located on the 46th floor of the building. The planks were approximately 60- to-70- pound, 20-foot-long wood pieces that served as support for the plywood forms. Each four by four was supported by five jacks that stood on the floor, and the carpenters who set up the forms would attach the top of each jack to a four by four with two nails. The concrete worker, in order to remove a four by four, would unlock a jack one at a time, lower it approximately one foot, then tilt the five jacks and the four by four over in order to lean the five jacks and four by four against something such as a wall, and then proceed to pry out the nails attaching the four by four to the jacks with a hammer.
The concrete worker’s accident occurred when he was removing the last of approximately twenty four by fours. The worker was able to unlock and lower four of the five jacks supporting this last four by four, but when he started to lower the fifth jack, the four by four detached from the jacks, fell or slid down the jack, and struck him in the rib cage. The four by four fell approximately 13 feet before striking the man.
The concrete worker sued the ground lessee of the premises and the general contractor (the defendants) under Labor Law § 240(1). The general contractor’s site-safety manager testified that ensuring that the four by fours are nailed onto the jacks so that when they are being removed the worker could bring it down through a controlled tilting of the jacks would present the safest means of removing the four by fours. He however, noted that in his many years of experience, he has found that not every four by four ends up being nailed to the jack, and even if they are nailed in, the nails can come loose. Because of this, it common for four by fours to fall while workers were stripping the floors.
Following discovery, the concrete worker moved for summary judgment under his Labor Law § 240(1) claim. The Court found that the concrete worker established his prima facie entitlement to judgment as a matter of law with respect to his Labor Law § 240(1) cause of action. The concrete worker’s testimony that the four by four was located approximately 13 feet above his head and that it weighed approximately 60 to 70 pounds shows that he was subject to a "physically significant elevation differential" between him and the four by four that fell. The testimony of the concrete worker and the site-safety manager also demonstrates the need for protective device because of the obvious risks inherent in concrete worker’s work presented by removing the four by fours from a height.
The concrete worker and the site-safety manager’s testimony also showed that the nails used to attach the four by four to the jacks were intended, at least in part, to hold the four by four onto the jacks during the set-up and removal of the forms. As such, the nails served as a Labor Law § 240(1) securing device and the failure of the nails to support the four by four on the jacks proves they were inadequate for the job being performed.
The Court was unconvinced by the defendants’ argument that the fact that the concrete worker was the only witness to his accident precludes his entitlement to summary judgment. Accordingly, the Court granted the concrete worker summary judgment on his Labor Law § 240(1) claim and remanded the case for a trial on damages only.
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