CONSTRUCTION LAW No Scaffold Required By Christopher Renzulli and John V. Tait Further Expansion of New York Scaffold Law Expansion of the exceptional protection of workers in the industry continues to march forward. New York has long had some of the most stringent laws in the country designed to protect workers in the construction trades. Under the New York statutory scheme, owners and contractors bear the ultimate responsibility to ensure that construction workers are provided with all appropriate safety devices required to perform their jobs safely and that a construction area remains free of debris that could pose a danger. Should an injury occur, owners and contractors may find that they bear absolute liability under the New York scaffold law. Recognizing the broad scope of the New York statutory labor law scheme intended by the New York legislature, of which the scaffold law is a part, New York courts have interpreted and applied the New York Labor Law provisions to include accidents which it does not readily appear that the statutory scheme would encompass. In a recent opinion, Runner v. New York Stock Exchange, New York s highest court has again expanded the scope of the New York scaffold law. To appreciate the pedestal upon which the scaffold law sits in the hierarchy of New York labor law, a brief mention of the three most common Labor Law sections utilized by an injured construction worker in New York, namely Labor Law sections 200, 240, and 241, is provided. While liability may be found under each section for a single incident, each section has its own unique applications, and the available defenses that may be asserted depend on which sections apply. General Negligence Statute Labor Law 200 is the low man on the Labor Law totem pole. Essentially, it is a general negligence liability statute that plaintiffs universally allege has been violated in construction lawsuits. It merely requires that all construction projects be constructed, equipped, and operated to provide reasonable and adequate protection for the safety of employees. Section 200 does not impose strict liability for its breach. See Cammon v. City of New York, 260 A.D.2d 70, 73 (N.Y. App. Div. 1999). Unlike most Labor Law sections, for 200 to apply and for a court to find liability, an injured worker must show that an owner or contractor had actual supervision or n Christopher Renzulli is a partner and John V. Tait is an associate with Renzulli Law Firm in White Plains, New York. Mr. Renzulli s civil litigation practice emphasizes product liability, mass tort litigation, construction and labor law, premises liability, professional liability and all aspects of insurance coverage disputes. Mr. Tait s civil litigation practice emphasizes product liability, construction and labor law, premises liability, contractual claims, and insurance coverage disputes. 34 n For The Defense n June 2010 2010 DRI. All rights reserved.
control over the injury-causing work. See Ross v. Curtis-Plamer Hydro-Electric Co., 81 N.Y.2d 494, 498 (N.Y. 1993). Even if an owner or contractor had authority to supervise or control the work, a plaintiff still bears the burden of showing that the authority was actually utilized. Moreover, an owner or contractor must have created or had actual or constructive notice of the defective condition that caused an accident. Liability for Rule Violations Providing a bit more protection than 200, 241 of the Labor Law is also designed to ensure that workers have reasonable and adequate protection from injury. Section 241, however, has 10 subdivisions, which either directly mandate the required safety precautions, or which refer to mandates established by New York s labor commissioner. The provision that the plaintiffs most often allege has been violated is 241(6). Section 241(6) reiterates the general, common law standard of care ( common law language ) and contemplates the establishment of specific detailed rules through the state labor commissioner s rulemaking authority. Courts treat the common law language of section 241(6) the same as they would a 200 negligence claim. One of the reasons that injured workers prefer 241 to 200, however, is because, with a few exceptions, courts do not require a plaintiff to show that an owner or contractor exercised actual control over or actually supervised the injury-causing work to state a claim under the commissioner s rules language of 241(6). If the underlying commissioner s rule contains a specific command and standard, the duty imposed on an owner or contractor cannot be delegated; whether an owner or contractor had actual control or supervision is irrelevant. Thus, although a plaintiff who controls the methods of his or her own work may be barred from alleging a Labor Law 200 claim, if he or she can show that an owner or contractor violated just one of the commissioner s rules, that plaintiff can allege a Labor Law 241 claim. Importantly, however, contributory and comparative negligence are valid defenses to claims asserted under 241(6). The Scaffold Law If a worker is injured in a height-related accident, however, an owner or contractor often faces absolute liability regardless of the defenses available under the other sections of the Labor Law. Section 240(1), commonly referred to as the scaffold law, is the darling of the plaintiffs bar and may represent the equivalent of the golden ticket for a careless, injured worker. Section 240(1) requires that all contractors and owners, and their agents, furnish or erect scaffolding, hoists, ladders, ropes, or other appropriate equipment to supply proper protection to a person employed in the erection, demolition, or repair of a building. See Labor Law 240(1). The purpose of the law is to protect workers engaged in construction activities involving heights by mandating the use of protective equipment and charging the responsibility for providing such equipment to the owner of the site. What makes 240(1) special, however, is that the duty imposed is non-delegable and applies to all contractors and owners and their agents who are involved in the demolition, construction, or repair of buildings, regardless of the degree of control exercised by an owner or contractor, or even whether an owner contracted for the work or benefitted from it. Moreover, contributory negligence cannot defeat a plaintiff s 240(1) claim. For example, courts have held that if a construction worker selects a ladder, sets up the ladder, and is injured when the ladder tips over because it was set up on an uneven floor or debris, the worker is entitled to summary judgment holding the owner and contractor liable for the injuries. See Scotti v. Federation Dep t Fed., 289 A.D.2d 322 (N.Y. App. Div. 2001). Courts have construed 240(1) as liberally as possible, with the stated goal of accomplishing the legislative intent to protect workers against the special hazards that arise when either a worksite is elevated or is positioned below the level from which materials are hoisted or where they are secured. See Jiron v. China Buddhist Ass n, 266 A.D.2d 347, 349 (N.Y. App. Div. 1999). The legislative purpose behind 240(1) is to protect workers by placing the ultimate responsibility for safety practices on owners and general contractors instead of on workers, who are scarcely in a position to protect themselves from accident. Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 501 (N.Y. 1991). Although liberally construed, 240(1) is designed to allow recovery only for special hazards due to elevation-related risks. Ross, 81 N.Y.2d at 500. Accordingly, injuries resulting from other types of hazards are not compensable under the statute even if proximately caused by the absence of an adequate scaffold or required safety device. If a worker is injured in a height-related accident an owner or contractor often faces absolute liability regardless of the defenses available under the other sections of the Labor Law. The exceptional protection provided to workers by 240(1) is aimed at special hazards and typically is limited to such specific gravity-related accidents as falling from a height [known as the falling man hazard ] or being struck by a falling object because it was improperly hoisted or inadequately secured (known as the falling object hazard ). Ross 81 N.Y.2d at 501. Because of the absolute liability imposed on owners and contractors for violating the scaffold law, courts until recently have cautiously held that the special hazards contemplated do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (N.Y. 1993); Rodriguez v. Tietz Center for Nursing Care, 84 N.Y.2d 841 (N.Y. 1994). History has shown, however, that the reasoned caution of the courts eventually gave way to the expanding wave of the scaffold law. Expansion of the Scaffold Law The movement in both the New York judiciary and legislature to expand the responsibility of owners and contractors to prevent height-related accidents and to For The Defense n June 2010 n 35
CONSTRUCTION LAW impose liability when those accidents occur can be traced back more than 100 years. The scaffold law s predecessor originated in 1885 with a law that made an employer s failure to provide scaffolding a misdemeanor. Recovering from the Depression of 1873, and with the recent completion of the New York Central railroad line, in the 1880s the New York construction industry The scaffold law unqualifiedly assigned liability to the contractors and owners and their agents, regardless of whether they had control over construction. experienced a rebound. As noted in a September 14, 1890 New York Times article expounding on New York City s population expansion of the prior decade, the business district of the city, which has been constantly expanding upward included the business houses and stores which have been pushing their way during the last decade northwest and crowding out the residences. Following on the heels of this rapid expansion in construction, newspapers widely reported numerous deaths and injuries caused by makeshift and defective scaffolds and inadequate safety devices, including the many deaths that occurred during the construction of the Brooklyn Bridge, which was completed just two years earlier. Fueled by these reports, the New York legislature enacted The Act for the Protection of Life and Limb, which subjected an employer to a $500 fine or six months in jail for knowingly or negligently furnishing or erecting unsuitable and improper scaffolding, hoists, stays, ladders, or other mechanical contrivances as will not give proper protection to the life and limb of any person employed in the erection, repairing, altering or painting 36 n For The Defense n June 2010 of any house, building or other structure. Before the legislature passed this act, personal injury suits arising from construction accidents were based only on common law duties of a master to a servant. The scaffold law has been amended multiple times over the years to increase its scope and to afford greater protection and recovery to injured workers. For instance, in the early 1920s, the scaffold law was expanded to require employers to provide hangers, blocks, pulleys, braces, irons, and ropes. Although for a brief period in the early 1960s New York courts required actual direction or control over the injurycausing work by an owner or contractor to impose liability, this slight contraction of the scaffold law s scope was swiftly checked by the legislature in 1969, when it assigned liability directly to owners and contractors. In shutting down the brief backtracking of the courts, the legislature resolutely stated that its purpose in redrafting the Labor Law was to place ultimate responsibility for safety practices where such responsibility actually belongs, on the owner and general contractor. Henceforth, the scaffold law unqualifiedly assigned liability to the contractors and owners and their agents, regardless of whether they had control over construction. The trend to expand the exceptional protection of the scaffold law continues to march forward. Recently, New York s highest court extended the scope of the scaffold law even further in Runner v. New York Stock Exchange, 922 N.E.2d 865 (N.Y. 2009). The Runner action was initiated in the United States District Court by an electrician, Victor Runner, to recover damages for injuries that he sustained while engaged in a major rehabilitation project at the New York Stock Exchange. The accident occurred as the plaintiff and his coworkers attempted to move a large reel of cable, weighing in excess of 800 pounds, from one part of the building complex to another. They needed to move the cable reel down a short flight of stairs, but no hoisting device had been provided for the workers use. Accordingly, the plaintiff s supervisor directed his crew to use a rope to restrain the reel as it was rolled down the steps. At the foreman s direction, the rope was affixed to the reel and wound several times around a pipe that was placed behind a doorjamb to serve as a brake. The plaintiff and two coworkers stood behind the pipe, holding the free end of the rope. After two other coworkers moved the reel to the stairway, the reel descended quickly, dragging the plaintiff forward toward the pipe. His right hand was crushed between the pipe and rope. As a result of the accident, four fingers of the plaintiff s right hand were severed, and the plaintiff fractured his right thumb and two fingers on his left hand. The plaintiff s complaint alleged, among others, that the owner of the stock exchange facility and the general contractor for the project violated the scaffold law. At the trial, the defendants argued that because the plaintiff neither fell nor was struck by a falling object, the scaffold law did not apply. The jury agreed and returned a verdict in favor of the defendants. The district court, however, set the verdict aside and concluded that the scaffold law had been violated, as a matter of law, because the movement of the reel down the stairs presented a gravity-related risk, an adequate safety device had not been used to manage the risk, and the failure to do so had been a substantial causal factor in the plaintiff s injury. On appeal, the United States Court of Appeals for the Second Circuit held that the question of whether the facts met the criteria of scaffold law liability was a question most appropriately addressed to the Court of Appeals of New York, New York s highest court. The court of appeals accepted the case for review and found that the scaffold law applied. The court reasoned that application of the scaffold law does not depend on whether an injury was caused by a fall, either from a worker s fall or an object that fell on a worker. Rather, the single decisive question is whether plaintiff s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. Runner, 922 N.E.2d at 866 67. Thus, the court found that the scaffold law applied to those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. Id. Scaffold Law, continued on page 70
Scaffold Law, from page 36 at 867 (internal citations omitted). Given the circumstances of this case, the court found that the plaintiff had not been provided with an adequate safety device and that his injury had flowed directly from the application of the force of gravity to the object. Id. at 868. Therefore, the Court of Appeals of New York agreed with the district court that the scaffold law applied. The Runner decision is expected to have far-reaching implications, not only by expanding the scope encompassed by the special hazards analysis, but also ren- dering the requisite elevation-related element de minimis. The court of appeals noted that even though the accident concerned a height differential of only four steps, the elevation differential cannot be viewed as de minimis. Id. In rejecting the defendants argument that the accident was not sufficiently elevation-related to fall within section 240(1) s scope, the court noted both the reel s weight and the amount of force it was capable of generating. Id. at 867. Based on this court s inquiry, the elevation-related element analysis now seems to include the character of the object that moved that is, the weight and size of an object, its force capability, the height of a fall, and any other factor that would pose a danger to the injured worker. Perhaps the most notable aspect of this holding is that it moves away from a height-related inquiry to a gravitational inquiry. The traditional special hazards from elevation-related risks, such as the falling man hazard or the falling object hazard, now may include any injury that results from any person or object in motion, directly or indirectly, due to the force of gravity. No scaffold required. 70 n For The Defense n June 2010