Be hard-hatted, not hard-headed

March 2, 2020
Emery v. Steinway determined that a cabling retrofit is construction work.

Elsewhere in this issue, we have a brief news story about a legal case in which an appellate court in New York ruled that the installation of cable in an existing building qualifies as construction work. In that story, we had only a little bit of room to squeeze in the facts of the case, so I’m taking this space to elaborate a little more. For no extra fee, I’m also offering my never-even-spent-a-day-in-a-prelaw-class perspective on the matter.

The case of Emery v. Steinway shapes up like this: An installer went into an existing building to do some cabling work above the ceiling. While up there, he hit his head on a steel beam. He sued, claiming that he should have been issued a hard hat because he was carrying out construction work. The defendant said, “Are you kidding? That’s not construction work.” The Supreme Court agreed with the defendant. That court said, and I’m paraphrasing here: That’s not construction work. You didn’t install the ceiling. It was already there. You just moved one tile and dropped a cable through the opening. No construction work means no hard hat required. Defendant wins.

The appeals court saw it differently. Citing the Industrial Code, it expanded the definition of construction to include the alteration of a structure. The appeals court said (I’m paraphrasing again): The installer had a saw to cut holes in the ceiling or the wall if that was necessary. A previous case (Weininger v. Hagedorn Co.) already established that cabling work can involve cutting holes, which is an alteration. An alteration counts as construction. So it doesn’t really matter whether or not the plaintiff in the Emery v. Steinway case actually cut holes in the ceiling or the wall. The fact is, cutting very easily could have been required, and often is required, to do cabling work. Therefore, a cabling install in an existing building is construction. The installer should have been provided with a hard hat and he wasn’t. Plaintiff wins.

While reading about this case, I thought about a cartoon I watched as a kid. Who remembers Woody Woodpecker? In one episode, as Woody let a situation spiral completely out of control, a dapper man in a suit, walking a tightrope and smoking a cigarette, reminds us, “If Woody had gone right to the police, this would never have happened.” While learning about Emery v. Steinway, I said to myself, “If the installer had just worn a hard hat to begin with, this would never have happened.” But it did happen. And whatever repercussions it may have on your business, I hope they don’t involve men in suits, tightropes, or cigarettes.

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