The Court of Appeals ruled in Fabrizi v. 1095 Ave. of Americas, 22 N.Y.3d 658, 662-63 (2014) that the plaintiff in a “section 240(1) ‘falling object’ case” must “demonstrate that at the time the object fell, it either was being ‘hoisted or secured’” (citing Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 (2001)) or that the object “‘required securing for the purposes of the undertaking’” (citing Outar v. City of New York, 5 N.Y.3d 731, 732 (2005)).

The first alternative—that the object fell while being hoisted or secured—was and remains simple enough. But what, exactly, is an object that “required securing for the purposes of the undertaking”? For that matter, what exactly, is the pertinent “undertaking”?

In an article published in these pages in May 2014 (“Falling Object Liability”), I stated that the answer was not entirely clear and suggested three alternative interpretations of the ruling: (1) that the key was foreseeability, and more specifically whether it was foreseeable that the object could fall and thereby cause injury; (2) that the key was whether the preventative measure that was claimed to have been necessary to prevent the object’s fall was a “safety device” within the ambit of the statute; or (3) that the key was the nature of the object that fell, and more specifically whether the object consisted of materials or equipment that were being used in the subject project and had not yet become a permanent part of the subject building’s structure. I added that the ultimate answer could also involve some combination of those three alternatives.

In the five-plus years since the Court of Appeals rendered its majority ruling in Fabrizi, the court has not had occasion to further explain what it meant by the phrase “secured for the purposes of the undertaking.” The matter has, however, been repeatedly addressed at the Appellate Division level, albeit with varying results. I accordingly revisit the issue here. In the remainder of this column, I address: (1) the Court of Appeals rulings which presaged Fabrizi and which might help us understand Fabrizi; (2) the ruling in Fabrizi itself; and (3) the Appellate Division’s post-2014 attempts to apply Fabrizi to other “falling object” cases.

‘Narducci’ to ‘Quattrocchi’

Under the Court of Appeals’ decision in Runner v. New York Stock Exch., 13 N.Y.3d 599, 604 (2009), Labor Law §240(1) is not limited to so-called “falling person” and “falling object” cases. “The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object.” Id. Nonetheless, most cases claimed to come within the statute’s scope arise from accidents in which the injured worker fell from a height (“falling worker” cases) or was struck by an object that fell from a height (“falling object” cases).

The lead case concerning the latter kind of accident, the “falling object” accident, was the Court of Appeals’ 2001 ruling in Narducci, 96 N.Y.2d 299. Narducci involved two cases that were joined for purposes of Court of Appeals review. In Narducci itself, the plaintiff was standing on a ladder in order to remove some window frames when “a large piece of glass from an adjacent window” fell and struck him, cutting his right arm. Narducci, 96 N.Y.2d at 266. The court stressed that “[t]he glass that fell was part of the pre-existing building structure as it appeared before work began” and there was no “evidence that anyone worked on that window during the renovation.” Id. at 268.

In the case joined with Narducci, Capparelli v. Zausner Frisch Assoc., a worker had just lifted a light fixture into a ceiling grid and had not yet secured the fixture. As he was “about to descend the ladder,” the fixture “began to fall from the grid.” Narducci, 96 N.Y.2d at 266. The plaintiff-worker “reached out to stop the fixture from striking him, but the fixture slid as he tried to hold it, cutting his right hand and wrist.” Id. at 266-67.

The Court of Appeals unanimously ruled that neither the Narducci accident nor the Capparelli accident came within the ambit of the statute. In so holding, the court said that a so-called “falling object” case could come within the ambit of the statute only if the object fell “while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.” Narducci, 96 N.Y.2d at 268 (citations omitted).

Over the next four years or so, the above-quoted standard defined “falling object” liability, with the result that a host of Labor Law §240 claims were dismissed on the ground that the falling object had not fallen while in the course of being hoisted or secured. (I cited 14 such rulings in my May 2014 column). But the Court of Appeals then spoke again, sending a very different message.

The case was Outar, 5 N.Y.3d 731. The facts in Outar were detailed in a prior appeal in the case. Outar v. City of New York, 286 A.D.2d 671 (2d Dep’t 2001). The plaintiff, “a track worker for the New York City Transit Authority … allegedly was injured … when an unsecured dolly, which was used in his work and stored on top of a ‘bench wall’ that was 5 1/2 feet high and adjacent to the worksite, fell and hit him.” Outar, 286 A.D.2d at 672. There was no claim that the dolly fell while in the course of being hoisted or secured. It had been left unsecured, and a gust of wind did the rest. The parties principally disputed whether the height from which the dolly fell was sufficient to implicate the statute. The Appellate Division ruled in the affirmative. Id. at 672-73. The Court of Appeals unanimously affirmed. Unfortunately, it rendered the ruling on abbreviated 500.11 review, with only a sentence of explanation. The explanation was this: “The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law §240(1)’s protection, and the dolly was an object that required securing for the purposes of the undertaking.” Outar, 5 N.Y.3d 731 (emphasis added).

In ruling as it did, the Outar court did not say what it meant by “an object that required securing for the purposes of the undertaking,” or what made the dolly such an object. Nor did the court directly disown its statement, in Narducci, that the statute applied only if the injury-producing object fell while being hoisted or secured. Ironically, the only authority cited for the result was Narducci itself, which the court cited with a “cf.”

In the wake of Outar, there was, to put it mildly, a good deal of controversy as to whether the statute applied only to objects that fell while being hoisted or secured, and, if not, when it did apply in “falling object” cases. The controversy was nicely typified by two 3-2 rulings in the First Department: Boyle v. 42nd St. Dev. Project, Inc., 38 A.D.3d 404 (1st Dep’t 2007) and Quattrocchi v. F.J. Sciame Const., 44 A.D.3d 377 (1st Dep’t 2007), aff’d 11 N.Y.3d 757 (2008).

In Quattrocchi, the case that ultimately wound up in the Court of Appeals, a contractor which was installing an air conditioner above a doorway “placed wooden planks atop two temporary swinging plywood doors to act as a shelf or makeshift scaffold upon which they could set the air conditioner if necessary.” Quattrocchi, 44 A.D.3d at 378. Plaintiff walked through the doorway, accidentally struck one of the swinging doors with his shoulder, and “‘at least three’ planks fell on his head and/or back and shoulder area.” The Appellate Division split on the question of whether the accident implicated section 240 of the Labor Law.

The Appellate Division majority, pointing to Outar, deemed the statute applicable inasmuch as “the Court [of Appeals there] made clear that the falling object liability is not limited to cases in which the falling object is being actively hoisted or secured at the time it falls.” Quattrocchi, 44 A.D.3d at 380. The dissenters looked further back, to Narducci, and perceived no reason why the planks that here fell on the plaintiff were any different than the falling glass in Narducci. Outar was distinguishable, the dissenters said, because “[t]he placing of two wooden planks on the top of the doors did not create a situation where a securing device of the kind enumerated in the statute would have been necessary or even expected.” Id. at 382.

The case went up to the Court of Appeals, which unanimously affirmed the Appellate Division ruling “that triable questions of fact preclude summary judgment on plaintiffs Labor Law §240(1) claim.” Quattrocchi, 11 N.Y.3d at 759. In doing so, the court said in a brief memorandum opinion: “As our holding in Outar v. City of New York indicates, ‘falling object’ liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured.” Id. at 758-59. The court added that there were issues of fact, “including whether the planks were adequately secured in light of the purposes of the plank assembly and whether plaintiff caused the accident by jostling the doors after disregarding a warning not to enter the doorway area.” Id. at 759.

Yet, the Quattrocchi court did not otherwise explain what made the planks in Quattrocchi different from the glass in Narducci or more like the dolly in Outar. Nor did it say what, precisely, it meant by the phrase “secured for the purposes of the undertaking.”

‘Quattrocchi’ to ‘Fabrizi’

In the aftermath of the Court of Appeals’ 2008 ruling in Quattrocchi, there were a number of cases in which objects that did not fall in the course of being hoisted or secured were nonetheless deemed within the scope of the statute, almost invariably with citation to Outar, Quattrocchi, or both, and often with the conclusory explanation that the object was one that should have been secured for the purposes of the undertaking. (My May 2014 article cited a number of those rulings, and also a number of rulings that went the opposite way.) There were also many “falling object” cases in which the statute was deemed inapplicable, usually with the equally conclusory explanation that the object did not require securing for the purposes of the undertaking, and usually with citation to Narducci. But there was very little effort to explain precisely when an object must be secured “for the purposes of the undertaking,” or how Outar and Quattrocchi materially differed from Narducci and Capparelli. Nor did the Court of Appeals’ decision in Fabrizi do much to illuminate the distinction.

In Fabrizi, the plaintiff was assigned to relocate a “pencil box” that his employer had installed the previous week. The pencil box “was situated between, and affixed to, two pieces of conduit that were four inches in diameter.” Fabrizi, 22 N.Y.3d at 660-61. Plaintiff drilled holes above and below the pencil box and then removed the pencil box, “leaving the top conduit dangling by the compression coupling near the ceiling.” Id. The conduit, which weighed 60-80 pounds, was now supported only by the “compression coupling.” Id. The compression coupling could not sustain the load and the conduit eventually fell, striking plaintiff. Plaintiff claimed that a more secure “set screw coupling” should have been used to hold the conduit in place. Id. at 662.

By 4-2 vote, the Court of Appeals deemed the statute inapplicable. The majority opinion by Judge Eugene F. Pigott said that plaintiff must show the object fell while in the process of being hoisted or secured or that it “‘required securing for the purposes of the undertaking,’” citing both Outar and Quattrocchi. The compression coupling, which plaintiff claimed to be inadequate, was not “meant to function as a safety device in the same manner as those devices enumerated in section 240(1),” apparently because “[i]ts only function was to keep the conduit together as part of the conduit/pencil box assembly.” Id. at 663. To extend the statute to encompass such a safety device would, the majority said, extend “the reach of section 240(1) beyond its intended purpose to any component that may lend support to a structure.” Id.

Yet, the majority never said why the conduit in Fabrizi was different than the dolly in Outar or the planks in Quattrocchi. Was the difference that the conduit in Fabrizi was part of the structure itself (like the glass in Narducci) and in that sense dissimilar to tools or as yet unconnected materials? Was there some other distinction?

Yet, the majority never said why the conduit in Fabrizi was different than the dolly in Outar or the planks in Quattrocchi. Was the difference that the conduit in Fabrizi was part of the structure itself (like the glass in Narducci) and in that sense dissimilar to tools or as yet unconnected materials? Was there some other distinction?

Post-‘Fabrizi’

More than five years after Fabrizi, we still have no further explanation from the Court of Appeals as to when an object is one that requires “securing for the purposes of the undertaking,” or even what is meant by “the undertaking.” However, we do have a body of Appellate Division case law which, while not entirely consistent and often lacking in explanation, permits some broad generalizations.

First, where the object that fell was extrinsic to the subject project—for example, the project entailed renovation of the 12th and 13th floors and the object fell from some higher floor that was not being renovated—I think it is safe to say that while the object may well have been one that should have been secured, it was not one that should have been secured “for the purposes of the undertaking.” Ruiz v. Ford, 160 A.D.3d 1001 (2d Dep’t 2018); Berman-Rey v. Gomez, 153 A.D.3d 653, 654-55 (2d Dep’t 2017); see also Ginter v. Flushing Terrace, 121 A.D.3d 840, 842-43 (2d Dep’t 2014). After all, this was essentially the fact pattern in Narducci, 96 N.Y.2d 299, wherein the Court of Appeals emphasized that the window from which the glass fell was not part of the subject project.

Second, where the object consisted of either equipment or materials that were to be used in the subject project but were left unsecured—as was the case both in Outar and Quattrocchi—the object may have been one which should have been “secured for the purposes of the undertaking.” Tropea v. Tishman Constr., 172 A.D.3d 450, 451 (1st Dep’t 2019); Passos v. Noble Constr. Group, 169 A.D.3d 706, 707-08 (2d Dep’t 2019); Wellington v. Christa Constr., 161 A.D.3d 1278, 1280-81 (3d Dep’t 2018); Gonzalez v. Paramount Group, 157 A.D.3d 427, 428 (1st Dep’t 2018); Cortes v. Jing Jeng Hang, 143 A.D.3d 854, 855 (2d Dep’t 2016); Grant v. Solomon R. Guggenheim Museum, 139 A.D.3d 583, 584 (1st Dep’t 2016); Sarata v. Metro. Transp. Auth., 134 A.D.3d 1089, 1090-92 (2d Dep’t 2015); but see Millette v. Tishman Const., 144 A.D.3d 1113 (2d Dep’t 2016); Seales v. Trident Structural, 142 A.D.3d 1153, 1156 (2d Dep’t 2016).

I say that such an object may have been a falling object within the meaning of the statute, not that it was such an object, for a reason. Quite apart from the Fabrizi question of whether the object was the kind or type of object that can come within the statute, there still remains the very different question of whether the subject accident involved a sufficiently significant elevation-related hazard to trigger the statute’s application. Under the Court of Appeals’ determination in Runner, 13 N.Y.3d at 605, that inquiry turns not merely on the distance the object fell (or could have fallen) but also on “the weight of the object and the amount of force it was capable of generating [when falling].”

Thus, while there have been and will no doubt continue to be cases in which the statute was deemed inapplicable even though the falling object consisted of equipment or materials that were to be used in the subject project, I think the general reason for such rulings, irrespective of whether it is articulated as such, is not the Narducci-Fabrizi rule as such but instead the more mundane limitation to significant elevation hazards.

Before proceeding further, I think one caveat and a related cautionary note are warranted. While the Court of Appeals ruled back in Misseritti v. Mark IV Const. Co., 86 N.Y.2d 487 (1995) that a falling object could not implicate the statute’s concerns unless it fell from a “higher level” than the plaintiff’s (or decedent’s) work level, the court effectively overruled Misseriti (or at least the way that “[s]ome New York courts” had interpreted Misseriti) in its subsequent ruling in Wilinski v. 334 E. 92nd Hous. Dev. Fund, 18 N.Y.3d 1 (2011).

To be sure, the distance that the subject object fell (or could have fallen) remains pertinent, and it remains that a court may conclude that the hazard was simply not of sufficient magnitude to trigger the statute’s protection. However, under the post-Wilinski and post-Runner calculus, a falling piece of sheetrock may well be treated differently than a falling I-beam, even if both objects fell the exact same distance. And, as I said, such is a factor completely apart from the “purposes of the undertaking” concern that is the subject of this article.

Third, while the distinction may not make much sense as policy, the courts sometimes distinguish, on the one hand, an object that was or should have been temporarily secured from, on the other hand, an object that was supposed to have been permanently secured as part of the finished project. The latter category would include Fabrizi itself, where the majority emphasized that the 60- to 80-pound conduit which fell was, at least in theory, permanently secured by means of the compression coupling that the plaintiff claimed to be inadequate.

In the wake of Fabrizi, there have been cases in which the statute was deemed inapplicable to objects that were permanently affixed (or, more accurately, that were supposed to have been permanently affixed). Djuric v. City of New York, 172 A.D.3d 456, 457 (1st Dep’t 2019); Honeyman v. Curiosity Works, 154 A.D.3d 820, 821 (2d Dep’t 2017); Vatavuk v. Genting New York, 142 A.D.3d 989, 989-90 (2d Dep’t 2016); but see Robinson v. Spragues Washington Sq., 158 A.D.3d 1318, 1320-21 (4th Dep’t 2018); McCrea v. Arnlie Realty Co., 140 A.D.3d 427, 428-29 (1st Dep’t 2016). And the statute has been deemed applicable to objects that were temporarily secured and nonetheless fell. Carlton v. City of New York, 161 A.D.3d 930 (2d Dep’t 2018). The statute might also apply where the object that fell was still in the process of being installed as part of the building’s permanent structure, in which event it could qualify under the first prong of the Quattrocchi-Fabrizi standard as an object that fell “while in the course” of being hoisted or secured. Escobar v. Safi, 150 A.D.3d 1081, 1082-83 (2d Dep’t 2017); Purcell v. Visiting Nurses Found., 127 A.D.3d 572, 574 (1st Dep’t 2015).

Finally, if the proof does not indicate why the object fell or where it fell from, it would seem that neither side is entitled to summary judgment since neither side could in those circumstances establish whether the object should have been secured for the purposes of the undertaking. Pazmino v. 41-50 78th St., 139 A.D.3d 1029, 1030 (2d Dep’t 2016); Podobedov. v. E. Coast Const. Group, 133 A.D.3d 733, 735 (2d Dep’t 2015).

Brian J. Shoot, a partner with the firm of Sullivan Papain Block McGrath & Cannavo, P.C., is a member of the American Academy of Appellate Lawyers, and also of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System.