that standard requires looking at "the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." An 800 pound reel of wire rolling a few feet and jamming a worker's hands that were being used to guide it down four stairs made out a case for Labor Law liability.
At least three judges of the 4th Department, however, don't seem to have gotten the message in Kuhn v. Giovenniello, 2016 NY Slip Op 08633 (4th Dep't, 12/23/16). Plaintiff here was removing and replacing a sewer pipe in a pizzeria when he was sruck by the falling pipe and hit in the shoulder. The pipe weighed 60 pounds and was about a foot over plaintiff's head. The majority holds that those facts alone make any "height differential" de minimus.
But the dissent, written by the Presiding Justice, sees it differently. The pipe which fell, 5-7 feet long and weighing between 60-80 pounds, broke loose an fell on plaintiff. Even though the "elevation differential" was slight, the "'activity clearly posed a significant risk to [his] safety due to the position of the heavy [pipe] above [his head], ... '" That being the case, and citing Runner, the evidence was "sufficient to establish as a matter of law that 'plaintiff's injuries were the direct consequence of a failure to provide ade- quate protection against a risk from a physically significant elevation differ- ential'."
It's good to see that some folks are keeping up with the newest slip ops from the Court of Appeals (Runner was decided in 2009.) With two dissents, this case might well find its way to Eagle Street. Keep on the lookout for Runner II.