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$2,750,000 settlement after the case was dismissed and then reinstated on appeal. Construction Accident | Labor Law § 241(6) | Trench Collapse | Danger Invites Rescue | Dismissal reversed by the Appellate Division, First Department
Our client was a union carpenter working for a construction company on a City of New York project to reconstruct sewers and water mains under roadways in the Bronx. On New Year's Eve 2014, he was standing alongside an open trench when the trench wall collapsed.
A coworker was down in the trench. A heavy steel beam that had been supporting the trench wall kicked out and fell four to five feet onto the coworker's leg, and the coworker cried out. Our client watched it happen. In a split second he went from union carpenter to rescuer: he climbed down into the trench and tried to lift the steel beam off his coworker. As he lifted, he felt a big pop in his lower back.
He herniated a disc in his lower back. MRIs confirmed the herniation at one level. He started with conservative treatment, then went through a series of pain management injections and less invasive back surgeries, and ultimately needed a lumbar fusion. The injury was so debilitating that it ended his career as a union carpenter.
Labor Law § 241(6) protects workers doing construction, excavation and demolition work, which the law treats as inherently dangerous. It makes owners and contractors responsible when a specific rule in New York's Industrial Code is broken on their project, even if they did not supervise the work themselves.
Our claim rested on the Industrial Code's trench rules:
A steel beam that was supposed to be holding the trench wall in place came loose and fell into the trench. That is exactly what these rules exist to prevent. The other Labor Law sections did not fit. Section 240(1) covers elevation-related risks, and our client was not hurt by a fall or a falling object: he was hurt lifting the beam. Section 200 did not apply because our client worked for a nonparty subcontractor, the City did not supervise or control the work, and the accident did not involve a dangerous structural condition of the property. The case came down to § 241(6) and the trench rules.
Want to understand how these protections work? Read our guide to New York Labor Law 200, 240(1) and 241(6).
We took the depositions of our client, a number of City witnesses, and our client's employer. The City of New York and the New York City Transit Authority (the work involved the roadway) then moved for summary judgment. They argued that no one in authority told our client to lift the beam, so his own choice was the sole cause of his injury. They also argued that he was hurt after the trench shoring had already failed, so his injury did not come from any Industrial Code violation.
The real issue was that the Labor Law protected the worker the beam fell on, and the defense said it did not protect the man who jumped in to save him. We argued that the danger invites rescue doctrine applies: a wrong to his coworker was a wrong to him, and the defendants were responsible for both.
Supreme Court, Bronx County, granted the defendants' motion. The court found no causal connection between the trench wall collapse, which the Industrial Code rules address, and our client's injury, which happened when he tried to lift the beam off his coworker. It also rejected the rescue doctrine, pointing out that the doctrine was created when any contributory negligence by a plaintiff barred recovery, before New York adopted comparative negligence. Because contributory negligence played no part in its ruling, the court called the rescue doctrine "wholly inapplicable" to the case.
We appealed immediately to the Appellate Division, First Department. Darren worked with appellate counsel Niall MacGiollabhui to take apart the motion papers, the decision, and the case law on the rescue doctrine, including how the different Appellate Departments in New York had treated it. On appeal, we showed that both the Second and Fourth Departments had applied the rescue doctrine to Labor Law § 241(6) claims, and asked the First Department, where this case was venued, to confirm that the same rule applies there.
The court began by noting that, despite how long both the doctrine and the statute have existed, the question appeared to be a novel one in the First Department. It then traced the rescue doctrine to its origin in an 1871 Court of Appeals case, in which a man was killed by an oncoming train while saving a child from the tracks. Voluntarily walking into danger is usually negligence, but not when it is done to save a life, unless it is rash or reckless, because the law, in the court's words, has "so high a regard for human life that it will not impute negligence to an effort to preserve it."
The court then quoted Judge Cardozo's classic statement of the doctrine for the Court of Appeals:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.
Wagner v International Ry. Co., 232 NY 176, 180 (1921), quoted in Leonard v City of New York
New York's pattern jury instruction on a duty to a rescuer (PJI 2:13) still opens with the same idea: "There is a principle of law that danger invites rescue." More than a mere suspicion of danger is required, and each case turns on its own facts. But the rescuer is judged in the moment, not with hindsight. It does not matter that the danger turned out to be less serious than it looked, as long as the rescue was a reasonable course of conduct at the time. Our client testified that he believed his coworker was seriously hurt.
On the Labor Law, the court noted that the parties did not dispute that the trench rules were specific enough to support a § 241(6) claim, or that the defendants violated them. With the beam undisputedly down in the trench, there was no way to defend those rules. The only fight was over who the law protects. The court rejected each of the defense arguments:
The court also explained why the rule makes sense. The rescue doctrine rests on an assumption about human behavior: people who see someone in peril will be moved to help. On a construction site, workers may feel an even stronger pull to help a coworker they work beside every day. Labor Law § 241(6) is meant to push owners and contractors to follow the Industrial Code, and protecting every worker put at risk by a violation, including workers who rescue their coworkers, serves that purpose.
On May 11, 2023, a unanimous panel held that the rescue doctrine can apply to Labor Law § 241(6) claims, reversed the dismissal, and reinstated our client's claim against the City and the Transit Authority. Whether his rescue was a reasonable course of conduct at the time was left for a jury to decide.
Read the decision: Leonard v City of New York, 216 AD3d 51 (1st Dept 2023) (also on Justia).
With the case back on track, we prepared it for trial. A life care planner evaluated our client, reviewed all of his medical records, examined him, and projected the medical care he will need for the rest of his life because of his injuries. Years after the accident, he still had not been able to return to work, so we also retained an economist to review his tax returns from before the injury and to put a value on the life care plan.
From the start, the defendants maintained there was no liability and no case. At mediation, the case resolved for $2,750,000.
Several firms turned this case down before it came to Darren, and others balked at it along the way. We believed in our client and in our position. When the case was dismissed, we took it to the Appellate Division to make sure the law was confirmed, and it was: in the First Department, the danger invites rescue doctrine is not limited to common-law negligence and can apply to Labor Law § 241(6) claims. That result came from perseverance, commitment and dedication to a truly deserving client.
Hurt on a construction site in New York? Learn more about New York City construction accident claims and Bronx construction accident cases, read our guide to trench collapses and the Industrial Code shoring rules, read our guide to the danger invites rescue doctrine, read about another Labor Law § 241(6) case we tried to verdict, or see the case result.
Attorney Advertising. Prior results do not guarantee a similar outcome. This page describes a past matter for general information and is not legal advice.
Business Name: MooreJustice New York City Accident & Injury Lawyers
Business Address: 171 Madison Avenue, Suite 305, New York, NY, USA
Business Phone Number: +1 (917) 809-7014
Darren Moore is the founder of The Law Offices of Darren T. Moore, P.C. and a dedicated New York personal injury attorney. Known for his relentless advocacy and client-focused approach, he has spent his career helping injury victims pursue justice and recover the compensation they deserve. Darren handles a wide range of personal injury matters and is committed to delivering personalized representation for every client.
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