New York State Bar: Wilinksi Case “Another Entry in the Swolen Legder of the Scaffold Law”

By: Scott Hobson

On October 26th, New York’s highest court narrowly ruled on a case which created yet another significant expansion of the Scaffold Law.  In the case, Wilinski v. 334 East 92nd Housing Development Fund Corp, 2011 NY Slip Op 7477, a worker was demolishing the walls of a warehouse building. In front of the brick wall that the worker was demolishing were two metal plumbing pipes rising vertically from the floor on which the worker was standing.

Two other workers demolished an adjacent wall about four feet away from worker, causing that wall to collapse into the pipes. The pipes toppled onto the worker and caused an injury. The Court of Appeals held 4-3 that the worker’s injury fell within scope of the Scaffold Law. Prior to this decision, the Scaffold Law did not apply in cases where a falling object was on the same level as the worker (i.e. tipping objects).

Justices Pigott, Graffeo, and Read dissented, noting that the majority’s decision deviated from “ …the overwhelming and settled body of case law that establishes that section 240(1) [the Scaffold Law] does not apply when the base of the falling object is at the same level as the worker and the work being performed. “ The dissenting justices pointed out that, moreover, there was no specific safety device which would have prevented the accident.

The November issue of the New York State Law Digest, a publication of the New York State Bar Association, featured an overview of the High Court’s decision and the case law behind it. Significantly, the article highlighted the pro-plaintiff construction of the decision, and noted that,