Summary Judgment Motions Under Labor Law

Summary judgment motions have become a routine part of claims brought under New York's Labor Law. The resolution of these motions will almost always result in an appeal. As one Judge eloquently stated during oral argument "It really doesn't matter which way I decide this case. Whoever the looser is, is going to appeal it anyways. Then the Appellate Division can figure it out." As more and more courts become frustrated with the appearance of conflicting Appellate Division decisions, sometimes even within the same department, this type of judicial frustration has dramatically altered the perception of labor law cases, especially under 240(1). In the late 1970's and early 1980's the term absolute liability was used in a very literal sense: if a worker is hurt on a construction site plaintiff wins, defendant looses. Over the past twenty-five years the defense bar has been very persistent, and effective, in exploiting very subtle issues and factual differences in defending labor law claims. Currently there are more Appellate Division decisions affirming the denial of summary judgment motions to the plaintiffs then those which affirm in favor of the plaintiff. This topic will explore suggestions on how to deal with labor law summary judgment motions in this new millennium.

WHY MAKE A MOTION FOR SUMMARY JUDGMENT?

I. FACTORS TO CONSIDER

One of the more important factors that has to be considered in every labor law case is whether a jury will be allowed to hear evidence on how the accident occurred.

Many construction accident claims brought under the 'absolute liability' provisions of the Labor Law involve a plaintiff who has contributed to the happening of the accident and, thus, can be blamed for some or even most of his/her damages. The perplexing problem of how to handle this issue at trial (i.e., the jury being told to ignore the workers own fault) will be completely eliminated. If judgment on the issues of liability is granted, the manner in which the accident took place, including plaintiff's comparative fault, is now irrelevant to the issues of damages.

When a plaintiff is granted summary judgment on the issues of liability it will enhance the value of the case. If the only issue that needs to be resolved is how much the defendant owes, the plaintiff's task of securing the highest settlement value on the case is made easier. The defense side will be more focused and have less to talk about during the negotiations. Also, CPLR 5001 and 5002 requires that interest be calculated from the date judgment on the issue of liability is established, even though the verdict on damages is resolved at a later date. [1] Thus, if plaintiff obtains Summary Judgment on May 1, 2001 and proceeds with an assessment of damages, which is not resolved until September 1, 2002, plaintiff will be able to collect 12% interest over the 16-month period. If the verdict on damages is one million dollars ($1,000,000), then that interest amounts to $120,000!

On a Motion for Summary Judgment the defendant must come forward with proof, in admissible form, to create an issue of fact. Even if the motion is not granted, the plaintiff will gain valuable information about the defendant's case. Thus, the plaintiff will get the best form of discovery the CPLR permits, an opportunity to learn first-hand what the defendant's theory is, and how they will attempt to prove it.

In the past few years the Court of Appeals has rendered several decisions on the Labor Law. By and large these decisions have not been plaintiff friendly and some of them have even eliminated what only a few years ago would have been considered to be an absolute winner. One of the most striking examples was the Narducci decision. [2] Until the Narducci decision, it was generally accepted that workers who were injured by objects falling from an elevated surface were well within the scope of §240(1) protection. Narducci, however, limited recovery to only those circumstances where the worker is struck by an object which falls while in the process of being hoisted or secured. Thus a plaintiff who is injured by a falling tool or piece of construction material temporarily stored on the roof of a building can have their §240(1) completely dismissed. In line with this trend, the Court in Long pronounced that section 241(6) was not an absolute liability provision and that contributory negligence was a valid defense; thus, it dramatically changed construction accident liability overnight. [3] Similarly, in Ross, the Court imposed requirements that the plaintiff's injury flow directly from the forces of gravity in order to spell out a violation of §240, and that a concrete/specific Industrial Code Rule violation must be alleged and proven in order to recover under §241(6). [4] This decision significantly circumscribed the scope of the labor law resulting in the dismissal of many pending claims. A more recent example of a sudden change in the law is Joblon decision which held that there must be a "significant physical change to the configuration or composition of the building structure" before the work can be found to constitute "alteration" of a building or structure as the term is used in §240. [5] With the recent fervor raised in the Legislature by the insurance industry and the builders association, we should anticipate more defense oriented judicial decisions in the near future.

II. WHEN TO MAKE YOUR MOTION: BEFORE OR AFTER THE NOTE OF ISSUE?

A. LAW GOVERNING

CPLR Rule 3212 was amended effective January 1, 1997. It now sets forth the time frame in which a summary judgment motion is to be made.

Rule 3212. Motion for summary judgment
(a) Time; kind of action. [Effective January 1, 1997, as amended by L.1996, c.492.] Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. [6]

B. SHOULD THE MOTION BE MADE BEFORE OR AFTER THE NOTE OF ISSUE IS FILED?
PRACTICAL CONSIDERATIONS

1. BEFORE NOTE OF ISSUE:
   
   
   1. Prior to Depositions. There is no requirement that motions be made after all depositions have been taken. Nothing in the CPLR, or case law, requires that depositions be taken, even of the plaintiff, before a motion can be made or granted. However, in the current atmosphere, which is not at all favorable to the plaintiff's bar, making a motion prior to deposition may actually result in delaying the ultimate decision of the case. If the motion is denied the major issues in the case will have been identified before any testimony of crucial witnesses are taken. These witnesses will now be able to use the decision to guide their responses through the discovery process. If the motion is grated the plea by the defendant for a reversal on the grounds that it would be unjust to deny the defendant an opportunity to gather necessary information through the discovery process in order to properly respond to the plaintiff's motion is likely to strike a sympathetic response on the appeal.
   2. After Discovery but before Note of Issue. If there is any concern at all of losing the motion, and further discovery would be needed if the matter is tried, the most appropriate time to move for S/J is just prior to the note of issue being filed. After all, paper discovery has been exchanged and depositions have been taken. Thus, if further issues are identified (and the motion is denied), there's still exist an opportunity for further discovery.
      
      
2. AFTER FILING NOTE OF ISSUE:
   
   By making the motion after the note of issue and statement of readiness is filed, the party opposing the motion cannot claim that further discovery is needed as a basis to deny the motion. Also, at least in most jurisdictions, the case will be moving up the calendar to a trial date while the motion is being decided; thus the pending motion does not delay the ultimate resolution of the case.

III. NECESSARY ELEMENTS OF LAW

A. FOR ABSOLUTE LIABILITY PROVISIONS:

Labor Law Sections 240(1), 240(2), 241(1-5), and 241-a are all statutory causes of action which impose a non-delegable duty which results in absolute responsibility upon all contractors, owners and their agents. Comparative negligence is not a defense. These tort claims are tailor-made for Summary Judgment motions. [7] Plaintiff only need show:

1. §240(1) governs the activity which gave rise to the accident. (DUTY)
2. the statute was violated. (BREACH)
3. the violation resulted in harm. (PROXIMATE CAUSE)
4. plaintiff suffered some injury. (DAMAGES)

B. In Rizzuto, the Court determined that notice of a dangerous or defective condition was not required to be established in order to recover under §241(6). [8] In the decision, the Court clarified the necessary elements to be established by a plaintiff, indicating that not only must there be an applicable concrete or specific Industrial Code Rule, which was violated, the violation must be determined by the trier of fact to give rise to a finding of negligence on the part of someone who is connected with the parties to the lawsuit or the contract. The factual issues involving comparative negligence and the additional elements identified in Rizzuto will normally result in a complete denial of a motion for summary judgment under §241(6) on the grounds that there are issues of fact precluding the granting of the motion.

However, CPLR 3212 (c) authorizes S/J "as to one or more causes of action, or part thereof." Thus, the court does have authority to grant judgment on the limited issue that a particular Industrial Code Rule applies to the case; that the Rule sets forth a specific concrete duty; that the Rule was violated and that the violation, at least in part, was a substantial factor in causing the plaintiff's injury. [9] In Hamilton, the case was simplified by reducing the number of issues to be tried, thereby saving time, money and possible jury confusion at the trial. [10]

It is also important to consider cross-moving for summary judgment on the 241(6) claim when the defendant makes a motion to dismiss plaintiff's 240 claim. Occasionally, a defendant may be so preoccupied with addressing their motion for Summary Judgment (such as establishing that the plaintiff was not exposed to the dangers of gravity so as to defeat the more ominous appearing 240 claim, or arguing that a particular Industrial Code Rule provision is not concrete) that he/she fails to raise a valid issue of fact concerning plaintiffs comparative negligence, thus, allowing the court to conclude there are no issues of fact warranting a trial on the issue of liability under 241(6).

IV. PROVING THE ELEMENTS OF §240(1): A CHECK LIST FOR SETTING FORTH A PRIMA FACIA CASE

A. Duty to comply with the statute.

In order to show that the statute governs the happening of the accident, plaintiff must submit proof to establish each necessary element and sub-part of the statute.

1. The defendant is either a contractor owner or an agent of either;
2. The statutory defenses do not apply, i.e., the building being worked upon is not a 1 or 2-family home owned by the defendant or the defendant is not an architect or engineer, except where the home owner or architect or engineer directs or controls the work;
3. That work of the type and nature specified in the statute or case law gave rise to the accident. The statute includes work in the nature of the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. It will also cover work that is necessarily associated with construction type activities such as cutting down trees or clearing land in preparation for the actual construction of a building or structure; and routine maintenance work, such as changing hydraulic fluid in a back-hoe, if it is established that the activity is a necessary part of the overall work on a construction project. [11] Other examples include the erection of a sign to the exterior of a building, roofing work, installing computer or communication lines in a building, replacing an oil burner in a furnace and a host of other activities. It has been held, however, that it does not include maintenance type work. In recent years the courts have held that certain types of cleaning activities are covered under the statute even where no construction activities are taking place. [12]
   
   When contemplating a motion, the plaintiff should consider what category or categories of activity will be relied upon to establish construction work, i.e.: demolition, repairing, alteration etc. Once a category has been chosen, the case law interpreting that category must be reviewed before a final decision is made. An example would be where a plaintiff is injured while performing repair work to a brick chimney. This work may be termed "repair" "alteration" or "pointing" work under the statute. On motion, if the plaintiff refers to the work as alteration, then the defendant may successfully argue that the motion should be denied because there exists an issue of fact as to whether the work constitutes a "significant physical change to the building". [13] Knowing this in advance, the plaintiff would be well advised to refer to the work as repair or pointing type work, which terms do not have the factual qualification that alteration work does.
4. The work is taking place on a building or structure. Structures have been defined as any man-made object, which is built or assembled. [14] Structures have included bridges, roads, water towers, boats, airplanes, trains, utility poles, furnaces, and conveyor belts.
5. Plaintiff is a member of the class intended to be protected against the harm. In Mordrofsky, the Court held that the Labor Law applies only to those who are employed, which means by definition, those people who are "permitted or suffered to work". Thus, the Labor Law does not apply to volunteers, contract vendees, or others who are not workers. While the Court of Appeals has not yet definitively ruled that the worker must be employed as "a construction worker" before the statute will apply, there are some Appellate Division cases which have inserted this requirement into the statute. [16]
6. The plaintiff has been exposed to the dangers of gravity. This requirement is met by simply showing that an elevation differential existed between the plaintiff and the level where the work is taking place. There is no minimum height which must be reached before the statute will apply. [17] The statute states that owners/agents or contractors must provide, furnish or erect for the performance of the work "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices." [18] Therefore, if the plaintiff can show no such devices were provided for the work, the violation of the statute becomes obvious. [19]
   
   However, merely providing a safety device does not establish that the defendant complied with the statute. The device must be adequate so as to protect the plaintiff. For example, providing scaffolding without a railing to a mason who falls from the scaffold because there is no barrier to prevent him from accidentally stepping off the scaffold edge constitutes a violation of the statute despite the fact that the mason was given a scaffold. Also, the safety device must be adequately placed; thus, if the defendant provides a ladder which is otherwise sound and adequate, and the plaintiff falls because the work he is performing requires him to stretch or lean (resulting in his fall from the ladder) the defendant remains absolutely liable since the statute was breached by reason of the ladder not being properly placed. [20] For a further discussion see the section under proximate cause and defenses listed below in this outline.
   7. The plaintiff's injury flows directly from the forces of gravity. This requirement has been read into the statute by the Ross decision and obviously covers crush-type injuries and fractures occasioned by the fall. [21] In Gordon, the Court extended the normal concept of an injury "directly flowing" from the forces of gravity to apply to a worker who fell off a ladder and sustained a facial abrasion due to a defective trigger on a sand blasting gun which failed to shut off when he hit the ground. [22] The Court held that the injury was a direct consequence flowing from the forces of gravity and the precise nature of the injury need not be foreseeable; plaintiff need only show that an injury will occur from the fall. [23]

Most often these basic elements of the statute are not at issue in the case, but they still need to be set forth in the moving papers. Generally, proving these elements can be done through the pleadings, notices to admit, and document discovery (such as construction contracts, plans, specs, building permits, etc.). These devices will often conclusively establish the identity of the parties, the nature of work, and the type of building or structure being worked upon. Accident reports (police, OSHA or those completed by defendants), Workers' Compensation reports, depositions and/or affidavits from witnesses will establish the remaining elements. Once the plaintiff establishes that there was an elevation differential (plaintiff is exposed to the forces of gravity), the defendants must then provide appropriate, adequate, and properly placed safety devices. [24]

B. Breach of the Statute.

Generally, there are two sets of circumstances plaintiff's counsel will have to deal with:

1. The statute is breached when the defendant fails to provide any safety devices. [25] Therefore, if the plaintiff can show that he was not given any scaffolds, planking, harness, nets or other type of safety devices to prevent him from falling (i.e., off the roof, through the hole in the floor where he's working, off the steel I-beams he/she is erecting), the defendant will have breached the statute.
2. The statute is breached when the defendant provides safety devices, but the devices are not adequate to protect the plaintiff. (i.e., defendant provided the ladder or the scaffolding which collapsed leading to the injury). The plaintiff is often times able to prove the statute was breached by the mere existence of the accident itself. In other words, the fall occurred because the ladder fell, or the scaffold collapsed and the very event of the ladder slipping and falling or the scaffold collapsing proves it was inadequately placed or constructed.

C. Proximate cause.

As is often true with medical malpractice claims, many §240 claims are defended on proximate cause grounds. The most common arguments involve the recalcitrant worker defense (see this outline at Section IX, "Defenses"), and concurrent and superseding causes. The following presents some suggestions on how to deal with the latter argument:

1. Concurrent or Superseding Causes. Some preceding event will always precipitate the fall. Whatever the precipitating factor may be, remember that it is only a concurrent cause of plaintiff's accident; the defendant's failure to provide sufficient safety devices will always be another causative factor. This defense will arise, for instance, when a defendant claims that the plaintiff's injuries were caused by a superseding event such as the operator of a vehicle that ran into the scaffold causing it to fall. Here a defendant is attempting to claim that the accident was caused by the vehicle and is seeking to ignore the fact that the scaffold, in fact, collapsed and fell, failing in the process to provide the plaintiff with adequate protection. Or, where a defendant claims that the plaintiff fell off his ladder because he reached too far for a tool, causing him to lose his balance and fall from the ladder. Here, the defendant is attempting to exclude its failure to provide an appropriately placed ladder to avoid liability by claiming that the accident was caused by plaintiff's negligence and not defendant's failure to provide a safe ladder. [26] Defenses of this type are best addressed through a Memorandum of Law, in support of the motion papers. Within the memo, recite the cases which hold the plaintiff is entitled to recover from a defendant as long as it can be shown his actions are a substantial factor in the happening of the accident; they need not be the sole cause. Also, the logic in Joyce is flawless: there will always be some event which precipitates the fall, and to permit the defendant to escape liability by blaming the precipitating factor for plaintiff's injuries would allow the defendant to nullify the effects of the statute. The Labor Law is designed to prevent injury to workers. [27]

D. Damages.

When seeking summary judgment on liability under the Labor Law, the plaintiff need only show that he/she sustained some injury/damages as a result of the defendant's breach of the statute. There is no need to elaborate on the extent of the injury since the issue is whether there is an injury, and not the extent of the injury. Generally, the defendant will take the position that they lack knowledge or information sufficient to form a belief as to the injury, in which case the plaintiff will be able to establish this issue simply by stating in his/her affidavit that they did sustain an injury. Other methods of proof of the injury include the employer's "C-8" form customarily filed with the Worker's Compensation Board, eyewitness's accounts, certified hospital records or a treating doctor's affidavit.

V. PROVING THE ELEMENTS OF A 240(2) CLAIM

A. This is a separate section of the Labor Law and while it also is intended to protect workmen on construction sites against the danger of gravity, its elements differ from 240(1).

Since the statute was enacted at the same time as 241 and 241-a, these sections must be read "in para materia". [28] In Khela, the Court of Appeals "read into" section 241-a that it applied to all owners, contractors and their agents as well as the exemption for 1 and 2 family home owners even when the statute does not contain these provisions. The justification was the requirement that these statutes are to be read and interpreted under the principal of in para material. Thus, except where 240(2) clearly spells out a different or new element, the courts will generally require that plaintiff set forth the same type of proof as is required for the similar elements of §240(1). The following checklist sets forth the necessary elements to establish a prima facie case under §240(2):

As per the principal of in para material:

1. The defendant is an owner, contractor or their agent;
2. The statutory defenses do not apply, i.e., the building being worked upon is not a 1 or 2-family home owned by the defendant or the defendant is not an architect or engineer, except where the home owner or architect or engineer directs or controls the work;
3. That erection, demolition repairing, altering, painting, cleaning, or pointing work was taking place (see section above under 240(1);
4. The work is taking place on a building or structure (see section above under 240(1);
5. Plaintiff is a member of the class intended to be protected (see section above under 240(1);
6. The plaintiff's injury flows directly from the forces of gravity. (See section above under 240(1)

As per specific provisions in 240(2):

1. The plaintiff was on scaffolding or staging that was more than 20 feet above the ground; and
2. There were no safety rails of suitable material properly attached at least 34 inches above the floor of the scaffold along the outside edge; or,
3. The scaffolding or staging was not fastened so as to prevent it from swaying;

B. Breach of the statute.

This is basically established by a showing that there was no railing, or the railing was not properly affixed, or was too low or did not run the entire length of the outside portion of the scaffold, or that the scaffold or staging was not fastened so as to prevent swaying.

C. Proximate Cause.

Under this provision the plaintiff must show that the injury was caused by a fall from the elevated work platform due to the fact that there was no railing or that the railing did not comply with the requirements of the statute or that the accident was due to the scaffolding or staging swaying. (also please see the section above under 240(1).

D. Damages.

See the discussion under section above for 240(1).

For suggestions on how to prove these elements, as well as defendant's breach of the statute, proximate cause and other defenses, refer to Sections IV and IX in this outline.

Section 240(3)

This section requires that all scaffolding shall be capable of bearing 4 times the maximum weight intended to be placed upon it. This section has rarely been used since these types of claims will be adequately covered under section 240(1). In fact if the scaffold collapses because it is inadequate for the weight placed upon it, then section 240(1) will have been violated whether the weight placed upon it was 1, 2, 3 or more times the maximum intended weight. As with section 240(2) the same elements 1 through 6 will most likely be read into the statute under the principal of in para material.

VI. PROVING THE ELEMENTS UNDER §241(1-5):

In order to show that this statute covers the happening of an accident, plaintiff must set forth the elements cited in the prefatory language of §241 and the applicable subsections. Again, since this statute and §240 and 241-a were enacted at the same time they must be read in para material. [29] Thus, except where 241 clearly spells out a different or new element, the courts will require that the plaintiff set forth the same type of proof as is required for the similar elements of §240:

1. Defendant is an owner, contractor or an agent of either;
2. The statutory defenses do not apply, i.e., the building being worked upon is not a 1 or 2-family home owned by the defendant or the defendant is not an architect or engineer, except where the home owner or architect or engineer directs or controls the work;
3. Construction, demolition or excavation of a building is taking place;
4. Plaintiff is a member of the class intended to be protected (see section above under 240(1);
5. That the location of the accident and/or circumstances surrounding it involves one of the elements in subdivisions 1 through 5; (for example...)
   1. §241(1) Floors are not filled-in as building progresses, (see statute for specific elements).
   2. §241(2) Under flooring is not laid on each story as building progresses, (see statute for specific elements).
   3. 241(3) The floor two stories immediately below where plaintiff is working was not planked over, (see statute for specific elements).
   4. §241(4) If floor beams are iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected was not planked over, (see statute for specific elements).
   5. §241(5) If elevators for hoisting equipment is used to lift material, shafts/openings on each floor were not totally enclosed or fenced on all sides, etc. (see statute for specific elements).
6. Since all the subsections 1 through 5 deal with the dangers of falling from one level to another within a building or being struck by a falling object the plaintiff's most likely will have to establish that the injuries flow directly from the forces of gravity as is required under section 240(1).

For suggestions on how to prove these elements, as well as defendant's breach of the statute, proximate cause and other defenses, refer to Sections IV and IX in this outline.

VII. PROVING THE ELEMENTS FOR §241(a):

A) In Khela, the Court of Appeals held that this statute must be read in para materia with Sections 240 and 241 since it was enacted at the same time and all were intended to afford workers on construction sites with greater protection. [30] Although this section does not specifically state that its provisions must be complied with by contractors and owners and their agents or that it exempts owners of 1-2 family dwellings the Court of Appeals has required that these provisions be read into the statute as per the doctrine of in para materia. Thus the terms: owners, contractors and their agents, building, construction, demolition or excavation work and the exemptions for 1 or 2 family buildings, architects and engineers will apply and have the same meaning as in Sections 240 and 241. For further discussion on proving these elements see the appropriate section under 240(1), above.

The specific elements of the statute, which must be set forth in the proof, are as follows:

1. The injury takes place in the course of construction or demolition of a building; 
2.  Plaintiff is working in or at an elevator shaft, hatchway or stairwell of the building;
3. Planking at least two inches thick was not laid across the opening at levels not more than two stories above and not more than one story below;
4. Plaintiff's injuries were caused by an object falling more than two floors or the plaintiff falling more than one floor;

For suggestions on how to prove these elements, as well as defendant's breach of the statute, proximate cause and other defenses, refer to Sections IV and IX in this outline.

VIII. PROVING THE NECESSARY ELEMENTS UNDER §241(6):

A. Labor Law §241(6) is not an absolute liability statute because the statute itself does not set forth specific standards of conduct which must be followed; rather, the statute refers to standards contained elsewhere. [31] However, the statute does impose vicarious liability on owners/agents and contractors, even if they do not direct or control the work. [32] Unlike a claim under §240(1), issues of comparative negligence are relevant under §241(6) and evidence of such negligence will normally preclude the granting of Summary Judgment on the issues of liability. [33]

More often than not, the plaintiff is trying to defend against a motion for Summary Judgment seeking dismissal of plaintiff's §241(6) claim. Whether plaintiff is making a motion for Summary Judgment on the issues of liability, or defending defendant's motion for Summary Judgment dismissing plaintiff's §241(6) cause of action, plaintiff must submit proof to establish each sub-part of the statue: 

1. Defendant is either an owner/agent or a contractor; 
2. The statutory defenses do not apply, i.e., the building being worked on is not a 1-2 family home owned by the defendant who does not direct or control the work and defendant is not an architect/engineer who does not direct or control the work;
3.  The work taking place was either in the nature of constructing or demolishing a building or excavation work in connection therewith;
4. There is a specific "concrete" Rule 23 violation that covers the circumstances of the accident. [34]
5. Plaintiff is a member of the protected class (construction worker, person permitted or suffered to work on a construction site, or a worker who is lawfully frequenting the construction site);
6. In Rizzuto, the Court held that "...once it has been alleged that a concrete specification of the code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury". [35] This language adds two more "sub-elements":
   1. once a violation of a code rule has been found the trier of fact must then determine if that violation amounted to negligence; and
   2. the negligence must have been committed by a party to the construction project.
   3. plaintiff is not comparatively negligent. (See paragraph "B" below).

Generally, proof of each of the necessary elements under §241(6) can be established through the pleadings, notices to admit, document discovery such as construction contracts, plans, specifications, building permits, etc. These devices will commonly establish the identity of the parties, the nature of work, and the type of building or structure being worked upon. Accident reports (police, OSHA or defendants own), worker's compensation reports, depositions and/or affidavits from witnesses will usually establish the remaining elements.

For suggestions on how to prove these elements, as well as defendant's breach of the statute, proximate cause and other defenses; refer to Sections IV and IX in this outline.

B. Comparative Negligence:

Although it is uncommon to find a plaintiff involved in a construction accident who is not at least partially at fault for their own injuries, plaintiff's counsel should not abandon all hope of defeating the defense. When dealing with a situation where comparative fault may be applicable, the first step to take is to thoroughly review the answer. If plaintiff's comparative negligence has not been raised as an affirmative defense, it should not be an issue in the case. If the defendant does assert such affirmative defense(s):

1. Serve a demand for a bill of particulars. Often times defendants fail to comply, allowing plaintiff to preclude proof on this issue.
2. Another method of proving plaintiff is free from comparative negligence is to take the deposition of all defendants and witnesses who were at the site. Ask them point blank, "What, if anything, did the plaintiff do which contributed to his accident?" Many times the witnesses (often members of the same union as plaintiff) will answer, "nothing."
3. Plaintiff can also submit on the motion an affidavit from an appropriate expert who will affirmatively establish the plaintiff was not comparatively at fault.
4. Occasionally defendants do not respond appropriately to a S/J motion (opposing only with attorney's affidavit) and therefore do not raise a triable issue of fact, even on the issue of comparative negligence. Be prepared to point this out on plaintiff's reply papers on the motion.

IX. DEFENSES

There are three basic arguments utilized by defendants in opposing a motion for summary judgment under the Labor Law. First, convince the court that the accident scenario is outside the scope of the Labor Law statute relied upon by the plaintiff; second, claim that even if the statute does govern the work taking place, there still exists an issue of fact as to one or more of the essential elements; third, and currently the most frequently seen, is the proximate cause argument that the accident was caused solely as a result of the plaintiff's own actions or his/her recalcitrant behavior in failing to use the safety devices supplied. Unless properly addressed, these defenses may create a sufficient legal basis to defeat the motion or enough confusion so as to prevent the plaintiff from being granted judgment on liability.

A. The accident is not within the scope of the Statute relied upon.

There are several potential avenues which may be exploited by the defense to support an argument that the statute relied upon by the plaintiff does not apply to the factual scenario giving rise to the accident. For example, on a Labor Law §240(1) motion the defense will look for viable arguments such as, the plaintiff is not within the class of individuals protected by the statute because the activity giving rise to the plaintiff's injuries is not an activity specified within the statute. [36] In Panek, the FAA, after moving from the old airport control tower to the newly constructed tower, hired the plaintiff's employer to retrieve a large air handling unit from the recently vacated premises. The County of Albany had given the FAA permission to remove any fixtures they wanted from the old tower before the County and the contractors they hired to demolish the building. The defense argued that the activities the plaintiff was performing was classified as "salvage" work and cited several lower court decisions holding salvage work is not within the statute. The plaintiff argued the work being performed was part of the demolition project and further the removal work constituted an alteration to the building as defined within Labor Law 240(1). The Court rejected plaintiff's argument as to demolition work since the plaintiff and his employer were not hired to demolish the building. However, the court accepted the plaintiff's argument that his work constituted alteration work within the meaning of the statute rejecting the defendant's argument that alteration work must be performed on a building or structure which is not scheduled to be demolished. The defense recognized that if the court viewed plaintiff's activities as being salvage work, there was ample precedent to support a dismissal of plaintiff's §240(1) claim. Thus, an attempt was made to create a mental picture in the court's mind that the plaintiff was salvaging the old air handling unit. To counter this potential defense the plaintiff must first anticipate this potential argument and to take the initiative in verbally painting a scene in the court's mind of the plaintiff performing alteration work to the building and blocking any attempt to have the court view the activities as salvage work.

Another example of this occurs when the defendant attempts to have the court look at the activity plaintiff was performing at the very instance of the accident, and to judge the applicability of the statute on that basis only and to ignore the context in which the plaintiff's act was being performed. [37] In Covey, the activity the plaintiff was performing at the time of the accident, changing hydraulic fluid in a backhoe, was certainly routine maintenance work. The court held, however, that section 240(1) allied nonetheless since the plaintiff's work was an essential part of completing the overall construction project. Despite the statute failing to specify the action of the plaintiff as a covered activity, the plaintiff is afforded protection under the Labor Law section if the activity is an integral part of the overall construction project. The Court had a similar holding in Lombardi where the plaintiff who fell while trimming a tree was found to be within the scope of 240(1) even though trimming of a tree is not generally covered under the statute. [38] Normally, tree trimming is not an activity covered under the Labor Law provision because a tree is not a structure within the statutory definition. However, the court held that tree trimming activity had to be done in order to make way for the foundation of a building to be erected and as such, the activities were an integral and necessary part of the overall construction project.

This same argument has been adapted to other required elements under Labor Law 240(1) statute such as an argument that the plaintiff is not within the class of people intended to be protected by §240(1) because the plaintiff was performing inspection work at the time of the accident and inspectors are not within the class of workers covered under the statute. [39] In Prats, the plaintiff's employer was hired by the defendant to inspect all air conditioning units at the World Trade Center complex and repair those which were not working properly. The plaintiff was injured when he fell from a ladder while in the process of inspecting a specific unit. The defense argued that plaintiff was performing inspection work at the moment of the accident and therefore was not performing work within the scope of §240(1). The court rejected this argument pointing out that the project which was taking place included extensive repairs to the air conditioning system in the several buildings that make up the World Trade Center. As part of the overall project, the plaintiff had to first identify which units were in need of repair before the repair work could take place. The plaintiff's activities, according to the court, must be placed within the proper context of the overall project. If the work the plaintiff was performing is a necessary step in the process of completing the overall project, the plaintiff will be covered as long as the project is within the scope of the enumerated activities in §240(1).

If this argument can be anticipated the plaintiff can initiate steps to prevent the defendant from this "slice and dice defense" by emphasizing at the outset that plaintiff was employed on a project which was covered within §240(1) and that the immediate task being performed was an integral and necessary part of the overall project. Another suggestion is to be prepared to distinguish the cases cited by the defense in opposition. For every case cited by the plaintiff in support of their motion, the defense can cite two cases which appear to have identical facts which support their opposition argument. With just a bit of research, often facts can be discovered which do not appear in the court's decision which can aid in explaining why it should not be considered authoritative on the motion. A good example of this occurred in Wenenger v. Hagadorn where the court's decision simply states that the plaintiff, who fell from a ladder was not entitled to summary judgment because the jury may find that the plaintiff's own actions were the sole cause of the accident. [40] Superficially, the decision, as worded, would appear to suggest that all a defendant need do to defeat a motion is to claim that a jury may find the accident was caused by the plaintiff's own activities. Even though this was not the intent of the Court, during the next several months, this defense was raised in nearly every §240(1) motion. [41] The Weinenger record on appeal reports that the plaintiff was injured when he stepped on the cross bar of an otherwise safe step-ladder causing it to fall over. This information was not mentioned in the Court of Appeal's decision. Not until this information became widely known was Weininger eventually brought back into proper perspective. [42] It is suggested that either a complete review of the record on appeal or a simple telephone call to the one of the attorneys involved in the case can often provide the necessary insight needed to distinguish the holding.

B. There exist questions of fact.

The objective here to is convince the court that there exist questions of fact on one or more of the necessary elements to prove liability which requires a resolution by jury trial. This can take on the form of an attack on the plaintiff's credibility. Despite the fact that summary judgment should not be denied to the plaintiff simply because the plaintiff is in sole possession of the facts (i.e. there were no witnesses to the accident) the motion should be denied if the plaintiff's credibility is properly placed in issue. The credibility issue, however, must involve a necessary element on the issue of liability and not simply be a conflicting version on an issue irrelevant to matters of liability. [43] This is illustrated in McCann where the issue of plaintiff's credibility on how severely he was injured in his fall from a ramp had no bearing on liability. Another example occurs when the defense opposes the motion on the grounds that the jury may find the accident never happened. [44] In Smith, the court noted that the defendants did not challenge plaintiff's account of the fall but were merely pointed to factual details which under the circumstances of that case did not warrant denial of the motion. Apparently both plaintiff and defendant agreed that injuries occurred when the plaintiff fell from a ladder. Defendant, however, argued that there was a question of fact as to whether the plaintiff lost his balance or whether the ladder slipped. The court did not agree. There were no eye witnesses to the event and the court stated that the affidavit of the plaintiff was not ambiguous. Therefore, because the defendant agreed that the plaintiff's injuries were sustained because of the fall from the ladder and because the defendant was unable to offer any proof in opposition of the plaintiff's facts, summary judgment is appropriate. [45]

One of the best methods of negating this potential defense is to take whatever steps are necessary to insure the plaintiff does not give any inconsistent statements and to keep the plaintiff's affidavit on the motion confined to addressing only the necessary elements to establish liability. The more details and irrelevant factual material presented, leads to a greater potential for the appearance of a question of fact. Remember, most courts are preconditioned to immediately denying motions for summary judgment on liability if it can be shown there exists an issue of fact. Once a statement in the moving papers is questioned the plaintiff is now on the defensive attempting to persuade the court that the facts now at issue are not necessary elements of the claim. To avoid going down that road limit the plaintiff's factual statement to cover only the necessary issues.

C. The Proximate Cause Defenses: Weininger, Blake, and the Recalcitrant Worker

The current hot bed of litigation under the Labor Law involves the issue of whether it was the plaintiff's activities which caused the accident as opposed to any violation of the statute by the defendants or their agents. It is in this context that the legal issues of comparative negligence versus the notion of absolute liability can be misinterpreted. In legal terms, this type of defense is a proximate cause argument. Stated simply, the accident did not occur because the defendant violated the terms of the statute, it was caused solely as a result of what the plaintiff has done. It must be clearly noted from the onset that the key word is solely; if the defendant violated the statute and the violation is a substantial factors in causing the accident, then anything the plaintiff does to contribute to the accident is no more than comparative negligence, which is not a defense to one of the absolute liability provisions of the Labor Law. If the plaintiff's activities were the sole cause of the accident then as a matter of pure logic the defendant did not violate the statute since these two propositions cannot occupy the same ground. [46]

The beginnings of the proximate cause defense first appeared in the Fourth Department decision of Smith v. Hooker Chemical & Plastics Co., and have evolved over time. [48] was Vona v. St. Peter's Hospital. [49] Vona, a painter, was specifically told by one of his foreman to use a stepladder to perform his work but the foreman did not affirmatively point out any specific ladder Vona was to use. Instead of using a ladder, Vona stacked two five-gallon pails on top of one another and stood on them to reach the top of the door he was sealing. On plaintiff's motion for summary judgment the plaintiff's foreman stated that after the accident he observed a ladder in plain view only 10 feet from where the plaintiff fell. The Supreme Court denied Vona's motion for Summary judgment, holding that there was a question of fact as to whether Vona was a recalcitrant worker for failing to use a stepladder. The Third Department affirmed stating that, a jury could conclude, based upon the evidence presented, that defendant had provided plaintiff a safety device which was erected and in place (the stepladder which was ten feet away) and that plaintiff was aware of this fact (circumstantial evidence that the ladder was within plain view of plaintiff) and that the plaintiff's failure to use the ladder could be construed as an implied refusal to use a plainly visible safety device.

Six months later, in Watso v. Metropolitan, [50] the court affirmed the submission of a recalcitrant worker defense to the jury upon facts in the record that when the plaintiff fell he was wearing his safety harness and had his 5 foot lanyard on but failed to tie off to the safety line and that a jury could find that the tie line was loose enough to stretch over to the spot where plaintiff was last working before the fall. This was sufficient to establish that plaintiff was the sole cause of the accident because he purposefully failed to tie off to the provided safety line.

Since these early cases, there has been a gradual expansion of the factual circumstances to which courts have allow the recalcitrant worker defense to defeat a plaintiff's motion for summary judgment on issues of liability. This expansion, however, has led to some confusion and misstatements of the requirements necessary to make out a valid recalcitrant worker defense. This article will discuss the current status of the defense and the consequential problems associated with applying it to a real world set of facts. To help in applying the recalcitrant worker defense the case law on the subject will be summarized into some general rules. While this defense and the following analysis applies to all subsections of §240, §241(1-5) and §241-a of the Labor Law, only §240(1) will be referred to because that subsection is, by far, the most often litigated of the Labor Law claims which involve the defense.

Before any attempt is made to apply the recalcitrant worker defense to a given set of facts, a clear distinction must be made between whether we are dealing with a situation where the defendant is (1) partially at fault for causing the accident (i.e. Defendant's failure to provide a safety device is in part to blame for the accident) or (2) where defendant did provide an adequate safety device but plaintiff's refusal to use it was the sole cause of the accident (i.e. sole causation).

When analyzing the case law, only the second situation should result in a bar to the plaintiff's recovery under §240(1). The reason is that in the first situation the accident was caused at least in part, by defendant's failure to provide an adequate safety device. Under these circumstances the defendant's breach of the statute must result in the imposition of absolute liability upon the defendant. The plaintiff's actions, even if it amounts to the refusal to use a safety device, can be nothing more than comparative negligence. Since comparative negligence is not a defense to a defendant's violation of the statute, the plaintiff is entitled to judgment, even if the plaintiff actions can be classified as careless or "recalcitrant". In the second situation, where the only cause of the accident (the sole cause) was the plaintiff's failure to use a safety device provided, is just another way of stating that defendant did not breach the statute [51].

Thus, Rule #1: The recalcitrant worker defense does not apply where the defendant fails to provide any safety device and the failure to provide any safety device is a proximate cause of the accident.

The Vona case presents a reasonable approach to the issue of whether, under all the circumstances of that case (i.e. a ladder was within 10 feet of the plaintiff, available for his use, in plain view, and the plaintiff had been told to use a ladder) was the proximate cause of the accident a violation of the statute or did the defendant comply with the statute and the plaintiff's failure to use the ladder, constituted the sole (100%) cause of the accident. But, where a defendant does provide a safety device it does not always follow that the defendant has complied with the statute. We know that if the plaintiff is provided with a ladder which has a bent leg and that while the plaintiff is using that ladder the bent leg causes the ladder to fall, the defendant will be held liable, even if the plaintiff is also comparatively at fault. But what if the defendant proves that prior to the accident he told the plaintiff not to use the ladder unless a co-worker holds the ladder steady, and, but for the plaintiff's recalcitrant behavior in failure to wait for someone to hold the ladder, this accident would never happen? This sounds like a compelling argument, which if accepted by a jury, would lead to the conclusion that the plaintiff is 100% at fault for the accident. However, this has been determined not to be the correct result under §240. This situation was presented to the Court of Appeals in Stolt v. General Foods Corp. [52] Stolt was injured when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder plaintiff fell from broke about a week before the accident and the plaintiff had been instructed not to use it unless someone was there to secure the ladder. Disregarding warnings, plaintiff used the ladder without assistance when his supervisor left the area. The court held the mere fact that the plaintiff disobeyed his supervisor's instructions by climbing the ladder did not provide a proper defense against plaintiff's claim under §240. Holding that it was "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractors liability by failing to provide adequate safety devices (e.g., Bland [53] )". The decision pointed out that plaintiff's injuries were a direct result of the failure by defendant to supply a safe ladder or other devices to give proper protection to the plaintiff. The accident was caused, at least, in part by the defendant's failure to comply with the terms of the statute. Turning its attention to the recalcitrant worker defense, the court held "it has no application where, as here, no adequate safety devices were provided (see Zimmer [54] )."

The reasoning employed by the court was that the statute requires the defendant to provide an adequate ladder. The defendant violated this duty and this failure was in part, one of the proximate causes of the accident. Thus, the plaintiff met his burden of proof on liability under §240.

Rule #2: The recalcitrant worker defense does not apply where the safety device provided is inadequate or defective, and constituted a proximate cause of the accident.

The Stolt decision also concluded that "We note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a 'safety device'." In Gordon [55], the Court, citing Stolt and Hagins v. State [56], held that "an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment."

No matter how many times a worker is told not to do an unsafe act or to be careful, an otherwise valid §240 claim cannot be defeated by an argument that the plaintiff is a recalcitrant worker for failing to follow the instructions or warnings. Evidence of instructions alone does not support a recalcitrant worker defense. This gives rise to another rule.

Rule #3: Mere warnings or instructions do not satisfy the duty to provide adequate safety devices under §240.

Milewski v. Caiola [57] provides a good example of this rule. Milewski was employed by an elevator subcontractor and was injured in defendant's building when the planking he was on gave way. The defendant opposed the plaintiff's motion for summary judgment claiming that a co-worker had warned him that the planking that plaintiff was laying across the open elevator shaft was unsafe to use. Moreover, defendant claimed that the plaintiff had not tied off his safety harness and lanyard to the safety line. In rejecting this argument the court held that even if the plaintiff could be considered recalcitrant for using the planking after being warned it was unsafe, and "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exists that the failure to provide proper safety planking was a more proximate cause of the accident."

The simple failure of the plaintiff to use a safety device, even one that can be deemed adequate, will not necessarily prove a valid recalcitrant worker defense. Although it is no longer required to show that the plaintiff "affirmatively refused" to use a safety device which was provided, there still must be some showing that the plaintiff purposefully refused to use it. There must be some evidence, circumstantial or otherwise, from which the jury could conclude that the plaintiff deliberately refused to use the safety device. If the proof merely shows that there were safety devices somewhere on the job site which were not used by the plaintiff, this will not give rise to a recalcitrant worker defense. In Gordon [58], the plaintiff's injury occurred when he fell from a ladder. The defendants made several arguments in opposition to the plaintiff's motion for summary judgment, one of which was that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. Defendants alleged that there was a scaffold available on site and that plaintiff had attended several safety meetings that included specific warnings not to sandblast from a ladder. The Court of Appeals, affirming the grant of summary judgment to Gordon wrote, "We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a 'safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt, supra; see also, Hagins, supra). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense. An owner's statutory duty is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection (see, Bland, supra; Zimmer, supra; Heath v. Soloff Constr. Inc [59] ).

The fact that plaintiff chose to sandblast from a ladder rather than from a scaffold, which may have been available, would only establish his contributory negligence, which is no defense to liability under §240(1) (see, Hagins, supra; Klien v. General Foods Corp.; Koumianos v. State of New York [60] )."

There must be proof that the plaintiff refused to take advantage of alternative safer means to perform his work or that he refused to use a safety device, which was provided. (Tennant v. Curcio; Reed v. State; VanAlstyne [61] ).

Thus, Rule #4 can be stated as: There must be some proof, direct or circumstantial, from which the jury may reasonably conclude that the plaintiff willfully or deliberately failed to use an available safety device.

This 4th rule is simple to express but it's not so easy to decide if and when it will apply to a given fact pattern. This was evident in the Second Department 3:2 decision in Jastrzebski v. North Shore School District [62], which was affirmed by the Court of Appeals "for reasons stated in the memorandum of the Appellate Division" [63]. The Second Department held that the jury's determination that plaintiff acted as a recalcitrant worker was supported by evidence that plaintiff had been working on a ladder when his supervisor instructed him to get off the ladder and to use the scaffold which was erected and in place at the site. The court noted that although plaintiff had indicated his assent to the directive and got off the ladder, he re-climbed the ladder as soon as his supervisor turned his back and began to walk away. Shortly after ascending the ladder a second time, the plaintiff fell sustaining his injuries. The majority refused to apply Gordon, on the grounds that "implicit in Gordon is that the recalcitrant worker defense has no application where no adequate safety devices were provided... In this case, unlike Gordon, scaffolding had been provided and was available for use by the plaintiff who refused to use it contrary to direct orders to do so." The majority also noted that the defendant in Jastrzebski gave immediate and direct instructions, through plaintiff's supervisor, not to use the ladder. This, the court felt, was significantly different and distinct from the passive instruction in Gordon to use the scaffold instead of the ladder. Importantly, the majority's decision in Jastrzebski held "there was no evidence in Gordon that the plaintiff had knowingly refused a direct order as the plaintiff in this case had." The court went on to say there is nothing in Gordon that requires the plaintiff "to tell his supervisor to his face that he was not going to obey him in order for the defendants to avail themselves of the recalcitrant worker defense." Thus, under the totality of the circumstances, the plaintiff's refusal to use the available safety device could be implied. However, Judge Bracken, with Judge Krausman concurring, noted that Gordon could not be distinguished as the majority decision purports to do. They argued that in the Gordon case there was no proof that the scaffold plaintiff was told to use was unavailable for plaintiff's use at the site. They claim that the Appellate Division decision in Gordon, which contains more facts than the Court of Appeals decision, demonstrates that a scaffold was readily available for plaintiff's use and therefore Gordon required a plaintiff's verdict in Jastrzebski.

Using similar reasoning, in January of 1996, the Third Department decided Hickey v. C.D. Perry and Sons. [64] There the plaintiff was injured when the 2 x 10 inch plank he was on, stretched over a sluiceway, broke under the weight of his 370 pound body. The defendant, in furtherance of its recalcitrant worker defense, submitted that there were ladders supplied, and in place, which were to be used to climb down into the sluiceway so one could walk across the bottom and to the other side and up another ladder. Also, that defendants were uncertain why the plank was placed where it was and that the defendant ordered its removal on more than one occasion and that they had removed the plank before to stop workers from using it. The court stated this created a sufficient issue of fact on the recalcitrant worker defense, presumably on the belief that there was sufficient circumstantial evidence that the plaintiff willfully refused the safety device provided by defendant (i.e. the ladders). Again, this court inferred plaintiff's refusal to use the ladder by his actions.

Gordon is not the only Court of Appeals decision that seemingly conflicts with the Jastrzebski decision. In Zimmer [65], the court held "The mere presence of ladders or safety belts somewhere at the worksite does not establish 'proper protection', leaving for the jury only the question whether the absence of safety devices was a proximate cause of the plaintiff's injury." In Bland [66], the plaintiff was using a step ladder. Plaintiff fell through a fourth story window when the ladder upon which he was standing suddenly collapsed beneath him. In answer to specific interrogatories the jury found that the ladder was not defective but did find that it was not properly placed so as to provide proper protection. On appeal the defendant argued that the jury's finding of improper ladder placement should bar the plaintiff from any recovery, since, it was the plaintiff who placed the ladder near the window and further, the statute was not designed to insure a worker against his own avoidable fault. The court rejected this argument holding that the statute imposes a non delegable duty on the owner and contractor to "erect" or "place" the ladder to provide plaintiff with "proper protection". Since this duty was not complied with, pointing the finger at the plaintiff would not provide a defense or excuse for the non-compliance with the statute. Once the statute has been breached, and the breach shown to be a proximate cause of the accident then anything the plaintiff is guilty of is nothing more than comparative fault and cannot serve as a defense to the claim. "Consequently, regardless of any carelessness on plaintiff's part which might also have contributed to his fall, defendants were properly held absolutely liable for the full extent of the damages proximately resulting from the improper placement of the ladder."

For a time, courts attempted to discern a plaintiff's willful and deliberate intentions not to use a safety device by focusing upon recent instructions the plaintiff was given to use a given safety device which was available. This approach was short lived and rejected by the Court of appeals in Cahill v. Triborough Bridge and Tunnel Authority [66], when the court refused to follow the Appellate Division's 4:1 decision granting plaintiff summary judgment on the premise that the recalcitrant worker defense is not applicable where a defendant fails to show that plaintiff had disobeyed an immediate instruction to use a harness or other available safety device. The court redirected the focus of attention from whether or not the plaintiff was given instructions and back onto how a jury might judge the plaintiff's actions. Despite remarking that "the word 'recalcitrant' fits plaintiff in this case well," because he disregarded specific instructions to use a safety line while climbing. Instead, the court said, "The controlling question, however, is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that his own conduct, rather than any violation of Labor Law §240(1), was the sole proximate cause of his accident."

While Gordon, Bland and Zimmer have not been overruled by the Court of Appeals, it can safely be stated that the Court of Appeals has recently avoided any reference to these decisions when dealing with the statute's duty to furnish, place and operate such devices so as to give proper protection. This is apparent in the court's decision in Montgomery v. Federal Express Corp. [67] Montgomery was assigned to work in an elevator motor room, which was located four feet above the roof level of a building. On previous occasions the plaintiff had used stairs which led from the roof level to the motor room. However, on the day of the accident he discovered that the stairs had been removed. The plaintiff used an over turned bucket to get to the motor room without incident. Upon leaving the motor room he was injured when he jumped to the roof below. The court affirmed the Appellate Division in dismissing the plaintiff's §240 claim against the owner and general contractor stating that "...since ladders were readily available, plaintiff's normal and logical response should have been to go get one. Plaintiff's choice to use a bucket to get up, and then to jump down, was the sole cause of his injury and he is, therefore, not entitled to recover under Labor Law §240(1)" Montgomery [68]. Despite the absence of any proof as to where the ladders were located, that they were available or that the plaintiff was given any instructions to use the ladder or warnings not to use the bucket, the court affirmed the dismissal of the claim citing to its decision in Blake [69], which deals with a plaintiff's actions which constituted the sole cause of the accident. There was no attempt to distinguish the court's holding in Gordon, Zimmer or Bland. The court simply did not mention them.

Similarly, in Robinson v. East Medical Center [70], the court affirmed the dismissal of the plaintiff's §240 claim holding him solely responsible for his fall from the top step of a 6 foot step ladder because "...he proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location." The court held that it was not sufficient that the plaintiff told his foreman "by the way, I'm going to need an 8-foot ladder" to which the foreman replied, "I'll see if I can get you one.", but never provided it. "These prerequisites [violation of the statute and proximate cause] do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them." Again, there is no mention of Gordon, Bland or Zimmer.

What is clear from the decisions in Montgomery and Robinson is that the Court of Appeals is willing to overlook the old requirement that a mere showing that a safety device was present somewhere on the job site is insufficient to properly raise the recalcitrant worker defense. Therefore, the safer way to express these recent holdings is to say that:

Rule #5: Where a defendant establishes that a safety device was present on the job site, the burden shifts to the plaintiff to prove that it was not readily available when needed.

Weininger And Its Legacy

Weininger v. Hagedorn & Co. [71] has had more of an impact upon the recalcitrant worker defense than any other Court of Appeals decision, and this was accomplished in a brief five paragraph decision which never mentioned any facts surrounding the how or why the plaintiff fell from his ladder. It was this total lack of attention to the details of what happened which caught everyone's attention. The main issue in the case dealt with whether the work the plaintiff was performing, that of running computer and telephone cable through the ceiling from an existing computer room into a newly leased space, constituted "alteration" work for purposes of §240(1). After agreeing with the Appellate Division that the work did amount to an alteration of the building, the court summarily stated: "Supreme Court erred, however, in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause. In the circumstances presented, a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law §240(1) did not attach." This holding initially gave rise to a belief that the Court of Appeals had pronounced a major shift in policy and that defendants could now defeat a motion for summary judgment merely by arguing that a reasonable jury could conclude that plaintiff's actions were the sole proximate cause of the accident.

This interpretation of Weininger was effectively negated when Judge Andrew V. Siracuse's decision in Secord v. Willow Ridge Stables, Inc. [72] was published. Judge Siracuse pointed out that the Court of Appeals had firmly established a relatively low burden of proof upon a plaintiff [proof of a statutory violation and proximate cause] and that Weininger did not change the playing field. "That the Court of Appeals has maintained this position up to the present is not immediately apparent in reading Weininger v. Hagedorn and Co., supra, but that case in fact is consistent with Rocovich, Zimmer and many others. What has most 'chilled the plaintiff's bar for the past months' (Breakstone, Jay, "Notes & Decisions", New York State Trial Lawyers' Association, Bill of Particulars, December 1998, at 16) is the apparent breadth of the Court's pronouncement; as reported in the brief memorandum, the plaintiff fell from a ladder, and the court held that the trial judge had improperly directed a verdict for the plaintiff; a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law §240(1) did not attach (91 N.Y.2d, at 960, 672 N.Y.S.2d 840, 695 N.E.2d 709)."

"This does indeed seem like a break from the past, and there is nothing in the Appellate Division decision that would lead one to a different conclusion... The record on appeal, however, shows that there was evidence before the court that plaintiff was standing on the crossbar of the ladder, a misuse of the device. The omission of this key fact from all the written decisions is surprising, because it is the best explanation of the Court of Appeals holding. While the testimony was questionable, it would clearly have been possible for a reasonable jury to conclude that the accident was caused by this misuse rather than any defect in the ladder itself or its placement or operation; this issue of fact would preclude a directed verdict or summary judgment."

Then came Blake v. Neighborhood Housing Services of New York City, Inc. [73]. Blake reignited the belief that summary judgment could no longer be granted in favor of a plaintiff whenever the defendant claimed a jury could conclude that the plaintiff was the sole cause of the accident and not anything the defendant did or did not do. In Blake the plaintiff was injured when the upper portion of the extension ladder he was on suddenly retracted. In affirming dismissal of the case based upon a jury finding that the ladder used by the plaintiff was "so constructed and operated as to give proper protection to plaintiff," the court held that "...under the circumstances of this case there was sufficient evidence upon which the jury was entitled to find that the ladder was not defective, inadequate or improperly placed, and that the sole cause of the accident was the manner in which the plaintiff used the ladder."

The reaction to Blake, like Weininger, was overstated. Weininger taught us that in order to really understand a §240 decision we must be fully aware of all the facts and not to rely on the highlighted ones. The same is true for Blake. The key to understanding Blake is tucked away in footnote number 8 to the decision. "Given the procedural posture of the case before us we address neither the propriety of the Supreme Court's denial of plaintiff's motion for summary judgment nor whether defendant should have been granted summary judgment or a directed verdict."

When Blake made his motion for summary judgment it was denied but not appealed by plaintiff. The case proceeded to trial and the jury found the ladder which Blake was using was an adequate safety device under the statute. Thus, the only issue on appeal was whether there was proof in the record that supported the jury's conclusion that the ladder Blake was given was so constructed and operated as to give proper protection to the plaintiff. Searching the record the Court noted that the plaintiff testified that the ladder was not defective, it was stable and there was no reason to have it steadied during use. He also revealed that he was not sure if he had locked the extension clips in place before ascending the rungs. This, the court held, fully supports the jury's findings that there was no statutory violation and that plaintiff alone, by negligently using the ladder with the extension clips unlocked, was fully responsible for his injury. In reality the plaintiff presented no facts such that the jury, or the court, could conclude that the ladder provided failed to comply with the statute. Without a violation of the statute then the plaintiff had to be fully responsible for the happening of the accident.

Some recent Appellate Division decisions have greatly expanded the scope of when a defendant has complied with the duty to provide adequate safety devices. In Berenson v. Water District [74] , the plaintiff was injured when he fell from a scaffold. The defendant proffered some proof that suggested plaintiff, or laborers under his supervision, placed an inadequate wooden plank on the scaffold causing it to collapse and therefore the jury may find that the plaintiff was the sole cause of the accident. The court agreed holding that "When a plaintiff handles a scaffold in such a manner as to create the condition causing its collapse, his or her conduct is the sole proximate cause of the accident." Apparently the Second Department is willing to allow a jury to find that the duty imposed by §240(1) to provide safety devices which are "...constructed, placed and operated as to give proper protection" is complied with when the plaintiff has been provided adequate but unassembled components of a safety device.

In Mulcaire v. Buffalo Structural Steel [75] , the court found that the plaintiff had set forth a prima facie case on his motion for summary judgment by demonstrating that he slipped through an uncovered opening in the floor and fell approximately 18 feet to the floor below. However, the court denied his motion holding that a jury may find that his actions are the sole cause of the accident. "Specifically, defendants raised an issue of fact whether there were extra sheets of decking available to plaintiff for safety purposes and, if so, whether plaintiff, based on his training, prior practice, and common sense, knew or should have known to cover the opening, and similar openings, which were created by the act of laying down the decking according to the project plan."

XI. PAPERS TO BE SUBMITTED

1. Plaintiff's Affidavit.
   
   The affidavit should be short and to the point. Plaintiff merely needs to show the necessary elements of his/her statutory cause of action. Avoid detail with respect to the manner in which the event occurred. If plaintiff was on a ladder and he fell, simply state, "I was working on a ladder and I was caused to fall." Avoid statements like "I fell from the scaffold when it rolled away from the building because the wheels were defective." Defendant may oppose the motion with an affidavit of a co-worker who states "The wheels were inspected after the accident and were working perfectly", thus creating the appearance that the accident occurred due to plaintiff's failure to lock the scaffold wheels. By submitting a detailed affidavit, a plaintiff can inadvertently create an issue of fact as to how the accident happened. Remember: the plaintiff does not have any burden to prove why an accident occurred, but merely needs to show that the statute was violated (i.e., the device given was "inadequate", without explaining how and why it was inadequate). [76] A plaintiff's offer of too much detail of the facts will produce a contrary version of those facts, leading some judges to deny summary judgment on grounds there is an issue of fact as to how the accident happened.
   
   
2. Witness Affidavit.
   
   If there is an independent witness (either to the accident itself or to the events, which existed at or about the time of the accident), an affidavit from such person can/should be made a part of the motion; as independent proof that the accident occurred. The mere presence of this affidavit can eliminate any question that the plaintiff is fictionalizing the happening of the accident. Under certain circumstances, it may be necessary to establish in more detail the how's and why's of the accident. By doing it through a witness, as opposed to plaintiff, you can supply the information, yet keep plaintiff's credibility from becoming an issue. A witness affidavit can also state multiple ways in which the defendant violated the statute. Sometimes, defendants will argue the ladder is a safety device and there now exists an issue as to whether it was adequate or not. [77 ] By showing the court, for example, that the ladder was neither tied at the top nor held at the bottom, plaintiff will demonstrate the ladder, although a safety device, was still inadequate by not being in compliance with the industrial code, OSHA rules, or custom and practice in the construction industry.
   
   
3. Expert Affidavit.
   
   Although elements for a Labor Law cause of action are generally straightforward, an expert affidavit can be used to supply the added leverage to convince the Court of the merits of the case. The expert can also resolve such issues as whether the type of activities taking place at the time of the accident comes within §240 (repairing, altering, painting, pointing, etc., as opposed to "maintenance" type work) or whether the work was performed at or on a building or structure.
   
   
4. Attorney's Affidavit - Should merely serve as a road map or an outline on the motion.
   
   
5. Memorandum of Law.
   
   
Should accompany the motion papers. It's so much easier for the Court to plagiarize an attorney's memo than to write an original decision. Timing of the memorandum is critical. If the plaintiff anticipates that there are complex issues that need to be resolved before the motion is granted, then the memo should not be submitted until after the defendants have served their opposing papers. By serving the memo in anticipation of these issues, you may inadvertently alert the defendant to an argument, which may otherwise have been overlooked.

Endnotes:

[1] Rohring v City of Niagra Falls, 84 N.Y.2d 60, 638 N.E.2d 62, 614 N.Y.S.2d 714 (1994)

[2] Narducci v Manhasset Bay Assocs., 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37 (2001)

[3] Long v Forest-Fehlhaber, 55 N.Y.2d 154, 433 N.E.2d 115, 448 N.Y.S.2d 132 (1982)

[4] Ross v Curtis-Palmer Hydro Electric Co., 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993)

[5] Joblon v Solow, 91 N.Y.2d 457, 695 N.E.2d 237, 672 N.Y.S.2d 286 (1998)

[6] CPLR 3212

[7] Zimmer v Chemung County Performing Arts Inc., 65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 (1985); Joyce v Rumsey Realty Corp., 17 N.Y.2d 118, 216 N.E. 317, 269 N.Y.2d 105 (1966)

[8] Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343. 693 N.E.2d 1068, 670 N.Y.S.2d 816 (1998)

[9] see, Ross, supra 4

[10] Hamilton v Tam Ceramics Inc., 214 A.D.2d 95, 626 N.Y.S.2d 635 (4th Dep't 1995)

[11] Covey v Iroquois Gas Transmission Sys. L.P., 89 N.Y.2d 952, 678 N.E.2d 466, 655 N.Y.S.2d 854 (1997)

[12] Bustamante v Chase, 241 A.D.2d 327, 659 N.Y.S.2d 284 (1st Dep't. 1997); Williamson v 16 West 57 Street, 256 A.D.2d 507, 683 N.Y.S.2d 548 (2d Dep't); Chapman v IBM, 233 A.D.2d 585, 649 N.Y.S.2d 228 (3d Dep't 1996); Vassey v Pyramid, 685 N.Y.S.2d 362 (4th Dep't 1999); Vernum v Zilka, 241 A.D.2d 885, 660 N.Y.S.2d 599 (3d Dep't 1997)

[13] see, Joblon, supra note 5

[14] Lombardi v Stout, 80 N.Y.2d 290, 604 N.E.2d 117, 590 N.Y.S.2d 55 (1992)

[15] Mordkofsky v V.C.V. Dev. Corp., 76 N.Y.2d 573, 563 N.E.2d 263, 561 N.Y.S.2d 892 (1990)

[16] Valinoti v Sandvil Seamco, Inc., 246 A.D.2d 344, 677 N.Y.S.2d 311 (1st Dep't 1998)

[17] see, generally, Rocovich v Consolidated Edison Co, 78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219 (1991); Ross, supra note 4.

[18] Labor Law §240

[19] Zimmer v Chemung County Performing Arts Inc., 65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 (1985)

[20] Bland v Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880 (1985); Felker v Corning, 90 N.Y.2d 219, 682 N.E.2d 950, 660 N.Y.S.2d 349 (1997)

[21] see, Ross, supra note 4

[22] Gordon v Eastern Railway Supply, 82 N.Y.2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993)

[23] see, Gordon, supra, at 563, 626 N.E.2d at 916, 606 N.Y.S.2d at 131

[24] Id. at 561, 626 N.E.2d at 915. N.Y.S.2d at 130

[25] see, Zimmer, supra note 19

[26] see, Joyce supra, note 7; Place v Grand Union, 184 A.D.2d 817, 584 N.Y.S.2d 666 (3d Dep't. 1992)

[27] see, Joyce, supra, at 122-3, 216 N.E.2d at 318, 269 N.Y.S.2d at 107

[28] Khela v Neiger, 85 N.Y.2d 333, 648 N.E.2d 1329, 624 N.Y.S.2d 566 (1995)

[29] see, Khela, supra note 28.

[30] Id.

[31] Long v Forest-Fehlhaber, 55 N.Y.2d 154, 433 N.E.2d 115, 448 N.Y.S.2d 132 (1982)

[32] Labor Law §241(6)

[33] see, Long, supra, at 160, 433 N.E.2d at 1276, 448 N.Y.S at 135

[34] See, Ross supra note 4.

[35] see, Rizzuto, supra, at 1071, 670 N.Y.S.2d at 819

[36] Panek v. County of Albany, 99 N.Y.2d 453, 788 N.E.2d 616, 758 N.Y.S.2d 267 (2003)

[37] see, Covey, supra note 11

[38] see, Lombardi, supra note 14

[39] Prats v Port Auth. Of N.Y & N.J., 100 N.Y.2d 878, 800 N.E.2d 351, 768 N.Y.S.2d 178 (2003)

[40] Weininger v Hagadorn & Co., 91 N.Y.2d 958, 695 N.E.2d 709, 672 N.Y.S.2d 840 (1998)

[41] Sopha v Combustion Engineering, Inc., 260 A.D.2d 911 (4th Dep't 1999), Stark v Eastman Kodak Co., 256 A.D.2d 1134, 682 N.Y.S. 2d 749 (4th Dep't 1998); Mortellaro v. State Farm, 259 A.D.2d 968, 688 N.Y.S.2d 457 (4th Dep't 1999)

[42] Secord v. Willow Ridge Stables, 179 Mis.2d 366 (Sup. Ct. Monroe County 1999)

[43] McCann v. Central Synagogue, 280 A.D.2d 298, 720 N.Y.S.2d 459 (1st Dep't 2001)

[44] Smith v. Pergament Enters Of S.I., 271 AD2d 870, 706 N.Y.S.2d 505 (3d Dep't 2000)

[45] see, Smith, supra at 872, 706 N.Y.S.2d at 507-8.

[46] Blake v Neighborhood Hous. Serv. of N.Y. City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003)

[47] Smith v Hooker Chemicals & Plastics Co., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th Dep't 1982); see also, Weineger, supra note 40; Blake, supra note 45.

[48] see, Smith, supra note 47.

[49] Vona v. St. Peter's Hospital, 223 A.D.2d 903, 636 N.Y.S.2d 218 (1996 3 [rd] Dept)

[50] Watso v. Metropolitan, 228 A.D.2d 883, 644 N.Y.S.2d 399 (1996 3 [rd] Dept)

[51] see, Blake, supra note 46

[52] Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (4/5/93).

[53] see, Bland, supra note 20

[54] Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 525-526,493 N.Y.S.2d 102, 482 N.E.2d 898 (Simmons, J. Concurring)

[55] see, Gordon, supra note 22

[56] Hagins v. State of New York, 81 N.Y.2d 921, 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557

[57] Milewski v. Caiola, 236 A.D.2d 320, 654 N.Y.S.2d 738, (1st Dept. 1997)

[58] see, Gordon, supra note 22

[59] Heath v. Soloff Constr. Inc., 181 A.D.2d 992] 107 A.D.2d 507, 510-512, 487 N.Y.S.2d 617

[60] Klien v. General Foods Corp., 148 A.D.2d 968, 539 N.Y.S.2d 604; Koumianos v. State of New York, 141 A.D.2d 189, 534 N.Y.S.2d 512

[61] Tennant v. Curcio, 237 AD2d 733; Reed v. State, A.D.2d; VanAlstyne 244 A.D.2d 978

[62] Jastrzebski v. North Shore School District, 233 A.D.2d 677, 637 N.Y.S.2d 439 (2 [nd] Dept. 1996)

[63] Jastrzebski v. North Shore School District aff. 88 N.Y.2d 946, 647 N.Y.S.2d 708

[64] Hickey v. C.D. Perry and Sons, 223 A.D.2d 779

[65] See Zimmer, supra note 54.

[66] Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74

[67] Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 [2005].

[68] See, Montgomery, supra note 67

[69] See, Blake, supra note 46

[70] Robinson v. East Medical Center, LLP, 6 N.Y.3d 550, 814 N.Y.S.2d 589

[71] Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840

[72] Secord v. Willow Ridge Stables, Inc., 684 N.Y.S.2d 867,179 Misc.2d 366 (1999, Monroe County)(Siracuse, J.)

[73] Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 771 N.Y.S.2d 484, 803 N.E.2d 757

[74] Berenson v. Water District, 33 A.D.2d 3 [rd] 574, 822 N.Y.S.2d 145 (2 [nd] Dept 2006)

[75] Mulcaire v. Buffalo Structural Steel, 45 A.D.3d 1426, 846 N.Y.S.2d 838 (4 [th] Dept 2007)