Labor Law §240: Morton v. State of New York

New York State Court of Appeals

Labor Law §240

Notice — Work Permit

Morton v. State of New York
No. 103
Appealed from the Second Department

Background: Claimant Alan Morton was injured on the morning of April 3, 1997 while working for his employer, the New York Water Service Corp., a private company that supplies water to portions of Nassau County. On that date, he was a member of a four-person crew, which included a foreman, dispatched with a backhoe to fix a break reported in a company-owned water main installed in 1928, beneath Carman Mill Road, a part of the New York State highway system. Upon arrival at the site, the crew notified affected customers and shut off water service, excavated test holes to pinpoint the leak’s origin and placed traffic cones to alert motorists to the presence of the backhoe, which occupied a portion of the northbound travel lane. Using the backhoe and shovels, the crew dug up blacktop in the roadbed and created a hole or trench, exposing the 12-inch water main buried several feet underground. When the claimant climbed down into the trench to clean around the main and apply a repair clamp, a side wall caved in, burying his right leg and foot. In June 1997, the claimant, with his wife suing derivatively, brought the action against the state. The state argued it was not liable under Labor Law §241(6) because the water company failed to obtain a work permit from the state Department of Transportation, as mandated by Highway Law §52, prior to repairing the water main, situated within the highway right-of-way.

Ruling: If a permit had been obtained, it would have created the nexus between the claimant, the injured worker and the state, the property owner. Without the permit, the claimant was a trespasser to whom the state owed no duty under Labor Law §241(6). The judgment is affirmed.

Brian J. Isaac for the appellants, and Victor Paladino for the respondent