Section 240(1) Labor Law made clear by Rupert Blake v. Neighborhood Housing Services of New York City, Inc.

Within twenty-four hours after the Court of Appeals decided Blake v. Neighborhood Housing Services of New York City Inc. (slip opinion 2003), those involved in the field of construction accidents began to wonder just how much damage, if any, it inflicted upon Labor Law §240(1). The plaintiff's bar could be heard to lament that Blake was another blow to New York's unique historical commitment to safety in the work place. On the defense side, responding papers on motions for summary judgment were already being redrafted citing to Blake as support to the notion that no accident scenario is beyond a jury trial on the issue of whether the plaintiff was the sole cause of the accident. After I read the decision no less than five times, I was still asking myself: does Blake signal a major shift in the Court's interpretation of §240……or, is it nothing more than a decision which simply reminds us that §240 does have its limits?

Before my sixth reading of Blake, I recalled the occasion when I first met Judge Albert Rosenblatt. I was on one of the many judicial screening committees interviewing candidates for the Court of Appeals. It was suggested that I inquire into Judge Rosenblatt's perspective on the Labor Law. When my turn finally came, and with no attempt to hide my motives, I posed the open ended question to him: "What are your views on Labor Law §240(1)?" He turned to me, and with a perplexed look on his face, said "Except maybe for discovery matters, §240 is the most litigated issue in our appellate courts. I find that amazing, especially when the statute itself is very short and pretty clear in my view." Before I could ask any follow up questions, my turn was over and all I was left with was that uneasy feeling that usually comes after an appellate argument when one of the comments made by a judge is played over and over again in your mind. What did the judge really mean by that remark?

Weininger v. Hagedorn, 91 NY2d 958, taught us that in order to really understand a 240 decision we must be fully aware of all the facts, both those which involve liability as well as procedural issues. If not, we run the risk of being heard to complain that the courts lack any continuity in the practical application of the statute. Blake is no exception to this requirement. The plaintiff sustained an injury when the extension ladder he was on suddenly retracted, causing him to fall. The defendant Neighborhood Housing Services (NHS), a non-profit organization that provides low interest loans, was acting as a lender to the home owner who could not be held liable due to the statutory exemption accorded one or two family home owner. The plaintiff argued that NHS was liable under §240(1) as the "agent" of the owner for purposes of this project. The extension ladder was owned by the plaintiff and he used it frequently. Throughout the pleadings, as well as at his deposition, the plaintiff said the ladder was in proper working order; it had rubber shoes and was without defect. He admitted that he set the ladder up and, presumably to deflect any blame on his part, testified that the ladder was securely placed; it was steady and there was no need to have anyone hold the ladder while he was using or ascending it.

As could be expected, all parties moved for summary judgment. The plaintiff's argument was simple, he was working on a ladder when it suddenly collapsed causing him to fall and sustain his injuries and that under section 240(1) the defendant is absolutely liable for his injuries. The defendant NHS opposed the motion on the basis that it could not be considered an agent for purposes of §240(1) since it was nothing more than a lending institution, and further, that there was a complete lack of any evidence as to how or why the ladder collapsed. Under these circumstances NHS claimed it was entitled to a dismissal of the complaint or at least an opportunity to have a jury decide whether the plaintiff's actions were the sole cause of the accident. The trial Court denied both motions finding that there existed factual issues on the proximate cause of the accident which must be decided by a jury. On the first appeal, the Appellate Division affirmed the trial court's determination that both motions had to be denied on the basis there existed issues of fact. Blake v. Neighborhood Housing Services of New York City, Inc., 262 Ad2d 244, 694 NYS2d 22 (1st Dept. 1999). The case proceeded to trial where the plaintiff conceded that he could not identify any defect in the ladder; it was stable and there was no reason to have it steadied during use. Presumably learning from the results of his failed summary judgment motion, he testified that he was not sure if he had locked the extension clips in place before ascending the ladder.

At the close of the case the court submitted specific questions to the jury. The jury answered the first interrogatory, as to whether NHS had the authority to direct, supervise and control Mr. Blake's work, in the affirmative. On the second interrogatory, as to whether the ladder used by the plaintiff was "so constructed and operated as to give proper protection to plaintiff," the jury also answered yes. Based upon the jury's responses the court entered judgment for defendant. Plaintiff's post trial motions seeking to vacate the judgment and set aside the jury's verdict and direct judgment in favor of the plaintiff was denied. On the second appeal to the First Department, the court affirmed the trial court's decision. The decision stated 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. Blake v Neighborhood Housing Services of New York, Inc., 301 AD2d 366, 754 NYS2d 244.

Judge Rosenblatt framed the issues presented to the Court of Appeals in the very first sentence of the decision. "We are presented with the question whether a plaintiff who was injured while using a ladder may prevail in a Labor Law §240(1) action even when a jury finds that the ladder was so constructed and operated as to give him proper protection and he was the sole cause of his injury." The importance of keeping in mind that a jury had already determined that the ladder was adequate and properly placed and that the First Department found sufficient evidence in the record to support that finding is repeated, if not emphasized, throughout the decision.

Upon reviewing the procedural history of the case, as well as plaintiff's admission that the ladder was appropriate, in proper working order, and safely positioned, the Court pointed out that the jury's response leads to the inescapable conclusion that the ladder did not malfunction, it was not defective, nor was it improperly placed. If there was nothing wrong with the ladder, then the plaintiff is essentially arguing that the jury's determination should be disregarded even though there is no proof in the record to support a conclusion that the statute had been violated. In other words, the only thing the plaintiff had left to argue was that he was entitled to judgment simply because Labor Law §240(1) imposes strict or absolute liability. This, the court termed, was an attempt to impose an insurer's obligation upon the defendant.

Reflecting upon the history of the statute, the Court pointed out that the statute itself never explicitly barred contributory negligence as a defense to a §240(1) claim. The rejection of the contributory negligence defense was first announced by the Court in the decision of Koenig v. Patrick Constr. Corp., 298 NY 313 (1948). The reasoning behind Koenig was that to allow contributory negligence as a defense would permit a defendant to escape the affirmative duty to comply with the statute by simply showing some culpable conduct on the part of the plaintiff. The Court ruled that contributory negligence could not be used to defeat the absolute duty imposed by §240. Koenig did not impose an insurer's obligation on a defendant nor did the Legislature or the Court of Appeals ever suggest that. Instead, there has always been a requirement that a plaintiff demonstrate that the statute was violated, and that the violation was a proximate cause of the plaintiff's injuries. How then could the Court overrule the jury's determination in this case if there was adequate proof in the record to support the jury's conclusions that the statute was not violated? However, the plaintiff cited the long list of cases which have held that §240(1) results in the imposition of "absolute liability." How then can a plaintiff who claims that his injuries are a direct result of the ladder's collapse, lose a §240(1) case?

The answer lies in how the word absolute is used in connection with §240(1). Again, the wording is not found anywhere in the statutory language but developed through case law. In Maleeny v. Standard Ship Building Corp., 237 NY 250 (1923) the Court referred to an employer's duty under the statute as imposing an "absolute duty" to furnish safe scaffolding and liability would result if they failed to do so. In Koenig the court referenced the duty as one which is "absolutely imposed" upon the defendant. In Connors v. Voorstein, 2 NY2d 172 (1958), the court first used the phrase "absolute liability" to describe the inescapable obligation imposed by §240(1). The term absolute as used in connection with §240(1), therefore, describes the non-delegable nature of the duty imposed by the statute, not the imposition of ultimate responsibility even where appropriate safety devices have been provided. "The point of Labor Law §240(1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so." Blake at 7.

In order to impose liability for damages, the plaintiff must establish that the statute was violated and that it was a proximate cause of his fall Duda v. Rouse, 32 NY2d 405 (1973). Only when a plaintiff has proven both of these elements will a defendant be precluded from blaming the plaintiff. If defendants were to be held liable under all circumstances the statute would have the opposite result the Legislature intended by enacting §240(1). Koenig at 316-317; Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 521 (1985); Stolt v. General Foods Corp., 81 NY2d 918 (1983). Blake provides a simplistic characterization of this concept: "Section 240(1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions. (See Mullen v. Zoebe, Inc., 86 NY2d 135, 143 [1995]; Bland v. Manocherian, 66 NY2d, 452, 461 [1985]." Blake at 9.

The term absolute or strict liability in the context of §240(1) means that the duty imposed on owners, contractors and their agents, is an absolute non-delegable duty. When any other meaning is assigned to the phrase it can easily give rise to confusion, "generating a good deal of litigation under Labor Law §240(1)." Blake at 11.

This is not the first time the Court has reminded us of misusing the term absolute in the context of a labor law case. In Long v. Forest Felhaber, 55 NY2d 154, 448 NYS2d 132 (1982), Judge Fuchsburg pointed out the very same problem was occurring in the context of a §241(6) claim. In Allen v. Cloutier Constr. Corp., 44 NY2d 290, 405 NYS 2d 630 (1978), the Court reported that "the 1969 legislation [which amended §241(6)] fashions absolute liability upon an owner or contractor for a breach of the duties imposed by subdivision 1-6 of §240(1) irrespective of their control or supervision of the construction site." After the Allen decision, most courts precluded comparative fault on the part of the plaintiff as a defense believing that the Court of Appeals had concluded §241(6) made all contractors, owners and their agents, absolutely responsible for injuries on the job site. Not until the Long decision did the court have the opportunity to address the meaning of absolute liability as it was used in the Allen case. Absolute liability was "…intended to emphasize the non-delegable nature of the duties the newly enacted statute imposed on owners and contractors rather than to upgrade these duties." Long at 158-59. It was an "over literal interpretation" of the term absolute liability.

It has always been a prerequisite that the statute must have been violated before liability for damages can be imposed under §240(1). Not every worker who falls at a construction site is entitled to the extraordinary protection of Labor Law §240(1). (See Narducci v. Manhasset Bay Associates 96 NY2d 259, 267 (2001). These types of uncovered incidents can occur despite the fact that the defendant has complied with the statute. With the same precision that an algebraic formula can be reformulated, the Blake Court noted that these uncovered accidents can be restated as situations where the defendant's acts or omissions are not the proximate cause of the accident. This is what Weininger v. Hagedorn and Co., 91 NY2d 958 (1998), was all about. The plaintiff fell from a step ladder which was adequate, properly placed and in good working order. What then caused the plaintiff to fall? Defendant argued that it was solely as a result of the plaintiff's misuse of the ladder (inexplicably plaintiff stepped on the hinged crossbar of the A-frame ladder). This is not an argument that attempts to use the plaintiff's comparative fault as a defense, it is a causation argument. The accident was due, not to any violation of the statute, but solely by reason of the plaintiff's misuse of a ladder which was otherwise adequate and properly placed. But, this can occur only where there is sufficient facts in the record upon which a jury could determine either that the statute was not violated or that the statute may have been violated in some manner but the violation is not a proximate cause of the accident. The important word is sole. If the statute was violated and the violation is found to be a proximate cause of the injury, then the defendant is responsible since the plaintiff's actions, whether they are negligent or not, cannot be used as a defense. Adversely, if the plaintiff's actions are solely to blame for the injuries, by exclusion this means that the statute has not been violated. "Under Labor Law section 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury." Blake at 14.

Another requirement imposed upon all owners, contractors and their agents under Section 240(1), is that the safety device they must provide also has to be properly erected and placed so as to give proper protection to the plaintiff. If the owners delegate this responsibility to another individual, the owner is still liable for the injuries caused by reason of the improperly placed ladder because the duty imposed by the statute is in fact absolute and non-delegable. Taking this one step further, if the owner delegates this responsibility to the plaintiff him/herself, the owner will still be responsible under §240(1) even if it was the plaintiff who misplaced the ladder. In this accident, the defendant would still be liable because the duty to properly place the ladder is absolutely imposed upon the defendant and cannot be avoided even by delegating the duty to the plaintiff. Bland v. Manocherian 66 NY2d 452 (1985). This scenario does not occur in the Blake case because there is no proof in the record to establish that the ladder was misplaced or improperly erected. In fact, the plaintiff himself admitted under oath that the ladder was not only without defect but was securely placed, steady, stable, and there was no reason to have it steadied during use.

So what caused the ladder to suddenly retract? As stated in Weininger, if a jury were to determine that the statute was violated and the violation was a proximate cause of the accident, the defendant must be held liable. However, if the jury determined that the sole cause of the accident was plaintiff's own actions, which is just another way of saying the accident was not caused by a violation of the statute, then, there would be no liability. But that had already been determined in the Blake case before it made its way up to the Court of Appeals. After a complete trial, the jury, through their answers to the special interrogatories, determined that the ladder was adequate and properly placed. In translation, they had determined, as a matter of fact, that the statute had not been violated. The Appellate Division found no reason to overturn the conclusion since there was adequate proof in the record to support the finding. Blake v. Neighborhood Housing Services of New York, Inc. 301 AD2d 366, 754 NYS2d 244. Therefore, unlike the Weininger case, which came to the Court on an appeal from a summary judgment motion, this issue had already been resolved by a jury and there was no need to send it back for a retrial.

There is one more aspect to the decision that needs to be addressed. Isn't an extension ladder which is set up without the extension clips being locked in place, improperly erected? Certainly that is no less dangerous than providing a worker with an extension ladder whose rubber shoes are not properly secured. Possible this was not an issue raised by the plaintiff in the pleadings or in trial. But, in fairness to all, wouldn't this justify the Court in overturning the jury's determination and then directing judgment as a matter of law or at least reversing the judgment and sending the matter back for a retrial on this issue of fact? I suspect there is a clue tucked away in footnote number 8 to the decision. "Given the procedural posture of the case before us we address neither the propriety of Supreme Court's denial of plaintiff's motion for summary judgment nor whether defendant should have been granted summary judgment or a directed verdict."

Footnote 8 also tells us that Blake should not be read as imposing a new requirement that the plaintiff must establish the cause or reason why the safety device collapsed or malfunctioned before summary judgment can be granted. Under circumstances where ladders or scaffolds collapse or malfunction for no apparent reason, there is still a presumption that the safety device was not good enough to afford proper protection and that the event itself does establish a prima facie case sufficient to require granting plaintiff judgment on liability according to the Court. The motion should be denied only where a defendant comes forward with some evidence to create a legitimate issue of fact, which if accepted by a jury, would establish that the statute was either not violated or that the violation was not a proximate cause of the accident.

The Blake decision simply resolves the issue as framed by the Court: whether a plaintiff who is injured while using a ladder may prevail in a §240(1) case even when a jury finds that the ladder was so constructed and operated as to give proper protection and that the sole cause of the accident was the plaintiff's own actions. The decision does nothing more than apply the principles developed by previous case law to the specific facts of the case. The result in Blake occurred more as a consequence of the unusual procedural history of the case than any change in the law. What Blake does teach us is that plaintiff's who rely upon the presumption that an unexplained collapse or malfunction of a safety device runs a much greater risk of having a defendant defeat the motion with "the sole proximate cause defense" then a plaintiff who is able to demonstrate upon a motion, not only that the collapse occurred, but how the event is connected to a violation of the statute. Blake also reminds us that when interpreting §240 we should not read too much into isolated words and phrases used in prior case law. We can never be far off course if we instead rely upon the short clear terms of the statute to guide us.