A Brief Course
On New York's Law
Of Construction And Other
Work Site Accidents
For Out-of-State Lawyers
Purpose
In 1969, New York enacted Sections 240 and 241 of the Labor Law. The purpose was to provide "adequate protection to workmen" engaged in various forms of manual labor. These statutes have been held to impose an absolute, non-delegable duty on all owners, their contractors and agents. This means that owners of property where accidents occur are absolutely liable to the injured worker, even when they do not control the work or the worksite.
Workers' Compensation Is Not A Defense
New York law allows a worker to collect Workers' Compensation benefits and still bring a third-party lawsuit. There is no election of remedies. Thus, a Bennington handyman who falls while cleaning snow from the roof of a Troy, NY, building can collect his Workers' Compensation benefits and still recover the full extent of his damages from the owners of the property.
Protects Non-New York Residents
Protection applies to all accidents which occur within the geographical borders of New York, even if the worker and/or his employer are residents of another state.
Parties Responsible: All Owners, Contractors and Agents
Includes anyone who has an ownership right (joint or co-tenants, lessee, easement holders, licensees, contract vendees, etc.). Also includes any party who initiates a work project, such as tenant who remodels leasehold or grantee of easement who enters property to make repairs. Contractors include generals, subs, sole proprietors, independents or others who have been assigned, or took on the obligation to perform the work, even if they delegated it to another before the injury occurred. The only exceptions are owners of 1-2 family residences, and architects and engineers who do not direct or control the work.
Non-Delegable/Vicarious Liability
Before these statutes were enacted, New York would allow an owner or contractor to avoid liability if they delegated the responsibility, by contract or otherwise, to another party and no longer controlled the work giving rise to the injury. Since it was the plaintiff's own employer who generally controlled the injury-producing activity, the plaintiff was left without any remedy except his/her Workers' Compensation benefits. The New York courts have interpreted that Sections 240 and 241 were enacted to prevent this avoidance of liability, and have held that these statutes impose a non-delegable duty. No longer can the defense of "lack of control" defeat liability, no matter what form the argument takes (i.e., lack of expertise, knowledge of the work or unsafe conditions). The duty imposed by these statutes thus results in vicarious liability upon all owners and their contractors.
Absolute Duty
Because Section 240 imposes a statutory obligation upon defendants, the duty to comply cannot be avoided or diminished by pointing to the plaintiff's own culpability, no matter how much at fault he is. Comparative negligence is not a defense! For example, if an owner contracted directly with plaintiff, a sole proprietor, to paint his barn and the contract requires plaintiff to comply with the Labor Law and to indemnify the owner for any damages caused by the plaintiff's actions, the owner is still liable to the injured plaintiff, even if the plaintiff used his own ladder, which slipped, causing him to fall because he failed to tie off the top of the ladder. The owner is absolutely liable to plaintiff, and cannot use plaintiff's own fault or the contract to defeat, or even diminish the award of damages.
Summary Judgment Decisions Are The Norm
Section 240 is a strict liability statute. All plaintiff need show is that the statute was violated, proximate cause, and damages. Fault or negligence of the defendant is not an element. Therefore, the vast majority of these claims never reach trial, and are resolved by motion. As long as the plaintiff can show the statute was violated, he will win on a motion, even where there are no witnesses and plaintiff is the only one with first-hand knowledge of the facts. Since this is not a fault-based claim, plaintiff does not need to prove how or why the accident happened.
"All contractors and owners and their agents, except owners of one- and two-family dwellings, who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
- Danger to be protected against: Intended to protect against the dangers arising from gravity. Affords protection against falls or being struck by falling objects. There is no minimum height, can be 20 feet or 2 feet. Need not be a fall to the ground, can be a fall into a hole, down a slope, or to the sea bed.
- Duty: Owners and contractors must provide safety devices which are adequate and in place at the job site. Devices include not just those listed, but also any other device necessary to protect the worker.
- Work covered: Section 240 covers more than just construction work. By its terms, it includes erection, demolition, repairing, altering, painting, cleaning, or pointing activities. It will also cover activities that are not specifically mentioned, but which are a necessary part of the work involved on the project. Examples of covered activities: window washing; installing cable-TV lines; painting lines in a parking lot; building a road; installing a ski lift; fixing a broken silo; painting a bridge; pointing bricks; installing computer cable; erecting an outdoor stage at a rock concert; installing large industrial equipment; changing hydraulic fluid in a backhoe at a building site; unloading sewer pipe from a truck on a pipeline project; trimming trees on a project to re-wire overhead power lines. New York's highest court has held that certain types of cleaning activities are also covered under the statute, even where no construction activities are taking place.
- Covers work on buildings and structures: Section 240 applies to work being performed on any building or structure. A structure is "any production or piece of work artificially built up or composed of parts joined together in some definite manner." Lewis-Moors v. Contell of N.Y., 78 N.Y.2d 942. Examples of what New York courts have held to be structures: airplanes; utility poles; bridges; boats; underground vaults; railroad cars; water towers; pipeline; industrial equipment; radio antennas; streetlights; satellite dish.
Imposes various requirements upon all contractors and owners when constructing or demolishing buildings or doing any excavating in connection therewith, such as to require: the completion of the flooring as the building progresses, §241(1); the underflooring to be laid on each story as the building progresses, §241(2); the floor of two stories immediately below where plaintiff is working to be planked over, §241(3); when floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected is to be planked over, §241(4); if elevators are used for hoisting equipment or lift material, the shafts/openings on each floor are to be totally enclosed or fenced on all sides, §241(5).
- Danger to be protected against: Injury caused by falls through the openings in floors of buildings which are being constructed or demolished.
- Duty: To fill-in or plank-over floors and enclose or fence-off elevator openings as the work progresses.
- Work covered: Applies to all construction, demolition, and excavation work.
Section 241(6) (the "safe place to work" statute)
"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings, who contract for but do not direct or control the work, shall comply therewith."
- Danger to be protected against: A wide variety of dangers such as tripping hazards, electrical dangers, sanitation, work on roofs, collapsing of trenches, insufficient lighting, demolition hazards, dangers associated with power-operated machines and equipment.
- Non-delegable vicarious duty: All contractors and owners and their agents must comply with the provisions of the New York State Industrial Code Rule 23, which can best be described as New York State's version of OSHA. There are numerous provisions that are intended to ensure a safe place to work. This statute imposes an absolute, non-delegable duty on all owners and, therefore, is considered to impose a vicarious liability upon defendants even if they do not control the plaintiff or his work.
- Comparative negligence is a defense: The plaintiff's comparative fault is a defense, unlike §§240 or 241(1-5). Because the provisions to be complied with are not found within the statute itself and reference to an administrative rule is required, New York courts have held that a violation of one of Rule 23's regulations does not result in a per se statutory liability. Therefore, the plaintiff's comparative negligence can be used to reduce the amount of recovery. But, since New York is a "pure" comparative negligence state, so long as plaintiff's negligence is less than 100%, he/she is entitled to a recovery.
- Work covered: §241(6) covers a wide variety of activities including building, erection, demolition, repairing, altering, painting, cleaning or pointing or a building or other man-made structure. Recently it was applied to routine maintenance work.
