Court of Appeals refuses to strictly interpret Labor Law Section 240(1) in Striegel v. Hillcrest Heights Development Corp

By Terése Burke Wolff, Esq.

On October 21, 2003, the Court of Appeals decided Striegel v. Hillcrest Heights Development Corp., 2003 WL 22387625. In that matter, plaintiff was installing felt and shingles on a roof. As plaintiff was walking on the roof ridge he slipped on frost. His body twisted and he fell to the roof. Thereafter, he slid 15 to 20 feet down the roof. Nails at the lower border of the roof caught plaintiff’s clothes and prevented him from falling off the roof. There does not appear to be any indication that plaintiff sustained any further injury when he slid down the slope of the roof. The lower court granted plaintiff partial summary judgment on the issue of liability under Labor Law Section 240(1) and determined that plaintiff was exposed to an elevation related risk while working on the sloped roof.

Defendant argued that Rocovich and Ross should apply so as to keep this accident outside of the scope of Labor Law Section 240. In Rocovich, the Court stated that the application of Labor Law § 240(1) is limited to injuries occasioned by elevation-related hazards “where protective devices are called for . . . because of a difference between the elevation level of the required work and a lower level.” Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514. In Ross, the Court held that the “special hazards” are limited to such gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or secured.

The Court of Appeals held that Rocovich and Ross were not controlling in this matter and the Court rejected the argument that Labor Law Section 240 is not applicable where the worker fell onto the roof rather than from the roof to the ground below. Striegel, supra. The Court of Appeals determined that plaintiff was subject to an elevation related risk, that he fell fifteen to twenty feet down the roof and that safety devices such as roofing brackets or crawling boards could have protected him. It may be significant to note that the defense did not contest the position that plaintiff should have been provided with such safety equipment under 22 NYCRR 23-1.24. Accordingly, that portion of the lower court’s decision was affirmed.

This decision is quite instructive in light of the Third and Fourth Department case law that preceeded Striegel. In Grant v. Reconstruction Home Inc., “ plaintiff testified that his injuries occurred when he fell on a dormer roof and that, although he ultimately ended up on the flat roof several feet below, he did not recall feeling any portion of his body strike the flat roof.” 699 NYS2d 193 (3rd Dept.). “Since plaintiff’s fall on the dormer roof occurred at the same level as his work site, and in the absence of proof that any of plaintiff’s injuries were attributable to the elevation differential between his work site and the lower level of the flat roof, plaintiff’s injury cannot be said to have resulted from the type of elevation-related risk envisioned by Labor Law § 240(1).” Id. In Moore v. Elmwood-Franklin School, the Fourth Department held that a fall onto the roof and a slide a few feet down the roof is not a 240 case. 672 NYS 221 (4th Dept. 1998).

Significantly, it appears that in the wake of Striegel, the aforementioned roof top accidents would now fall within the purview of 240(1). The Court of Appeals does not seem to differentiate between those injuries that occurred when plaintiff fell onto the same level as his work site and those injuries that occurred due to an elevation differential between his work site and a lower roof level.