New York Labor Law
Details of Labor Law §240(1)
The Statutory Language of §240(1):
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
History & Evolution
The origins of Labor Law §240 can be traced to Chapter 314 of the Laws of 1885, which made the failure to provide scaffolding, etc., a misdemeanor for a person employing or directing another in performing labor on a structure. It was first titled as §18 of the Labor Law.
Over the past 100 years, the legislature has amended the statute several times. Each amendment was designed to increase either the scope of the statute or the protection afforded to workers. In 1921, Labor Law §18 was renumbered §240 and cleaning and pointing work was added as activities covered by the statute [L. 1921, Ch. 50]. It was under this same amendment that the statute was expanded to become more than "just the scaffolding law." It now required that workers be provided with slings, hangers, blocks, pulleys, braces, irons, ropes and other safety devices.
In 1948, the Court of Appeals decided Koenig v. Patrick Const. Corp., 298 NY 313, which held that the statute imposed a flat and unvarying duty to protect workmen against hazards of using faulty or inadequate equipment. Since the duty was not dependent upon the negligence of the employer, contributory negligence could not be a defense to a violation of this section. If the employer could avoid this statutory duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. Koenig, 298 NY 313
In 1969, the legislature again amended §240 by requiring that all contractors and owners and their agents shall comply with the statute [L. 1969, Ch. 1108]. Since this amendment, the courts have determined that the statute imposes first instance liability upon all contractors and owners, as well as their agents (See, Kelly v. Diesel Const. Div. 35 N.Y.2d 1 (1974)) and that this first instance liability cannot be escaped by delegating the responsibilities to other contractors or subcontractors. Rocha v. State of New York, 45 A.D.2d 633 (3rd Dept. 1974). Section 240 was intended to place ultimate responsibility for safe building practices on property owners and contractors and not upon construction workers who are scarcely in a position to protect themselves from accidents. Lombardi v. Stout, 80 N.Y.2d 290 (1992).
The duty to comply with the statute is non-delegable and actual control or supervision by the owner or general contractor is not required to find them liable. Haimes v. NY Telephone Co., 46 N.Y.2d 132 (1978). In Haimes, Judge Fuchsburg presents a thorough and informative analysis of the development of Labor Law §240. By way of Legislative Amendment in 1962, the teeth of Labor Law §240 were extracted. The 1962 Amendment came to be construed as requiring an owner or general contractor to have actually exercised control or supervision over the task causing the injury before liability would attach under §240. To correct this evolution of case law, in 1969 the Legislature essentially reenacted the pre-1962 version of §240 (L.1969, Ch. 1108, § 3) with the encouragement of organized labor.
Liability is mandated against an owner or contractor who fails to provide appropriate safety devices, regardless of what the terms of the contract provide or what the custom and practice in the construction industry may be. When the evidence establishes the absence of any safety devices at the work site, §240 has been violated. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985).
Purpose
Section 240 affords protection to workers engaged in construction and certain other types of activities who are required to work at heights. Subdivision 1 of this section requires that "all contractors and owners, and their agents" provide scaffolding, hoists, ladders, etc., and other devices to protect workers engaged in the erecting, demolishing, repairing, altering, painting, cleaning, or pointing of a building or structure. Owners of one and two-family dwellings are excluded, unless they exercise some control over the work. Professional engineers, architects and landscape architects are also exempted from the requirements of the statute as long as they do not control or direct the work. Subdivision 2 requires that scaffolding over twenty feet high must have a safety rail at least 34 inches above the floor of the platform. It also requires that the scaffolding be fastened to avoid swaying. Subdivision 3 requires that scaffolding must be able to bear a weight four times that which will be placed on the scaffold when in use.
The Law of Gravity: Rocovich v. Con. Ed., 78 N.Y.2d 509.
In November of 1991, the Court of Appeals decided the case of Rocovich v. Consolidated Edison, 78 N.Y.2d 509 (1991). This decision established that before the statute can be applied, there must exist an elevation differential. This differential can occur either:
1) Where there is a difference in height between the worker and a level below the worker; OR
2) Where there is a difference in height between the worker and materials being hoisted or secured above the worker. Rocovich.
Because the language of §240(1) does not set a minimum height which must be achieved before the statute must be complied with, the Court noted that height alone may not be used as the sole criteria for determining when the statute will apply.
Special Hazards Require Exceptional Protection: Ross v. Curtis-Palmer, 81 N.Y.2d 494 (1993)
In Ross v. Curtis-Palmer, 81 N.Y.2d 494 (1993), the Court of Appeals "expanded" upon its holding in Rocovich. In Ross, the Court went on to require that the worker's injury must have a direct connection to the dangers posed by the risks associated with gravity before the defendant can be held liable. Thus, the injury must be directly caused by the forces of gravity, not just connected to gravity in some tangential way.
The special hazards that require the exceptional protection of this statute do not encompass all perils that may be connected in some tangential way with the effects of gravity, but is restricted to specific gravity-related accidents such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. Ross, 81 N.Y.2d at 501.
The Court in Ross summarized its analysis of Labor Law §240 by stating that the statute "...was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective devices provided proved inadequate to shield the injured worker from harm directly flowing from this application of the force of gravity, to an object or person."
What Type Of Harm Is Related To The Forces of Gravity? Gordon v. Eastern Railway Supply, 82 N.Y.2d 555
In 1993, the Court of Appeals decided Gordon v. Eastern Railway Supply, 82 N.Y.2d 555 (1993), which gave us a different view of those injuries which are to be considered "directly related to the forces of gravity." Mr. Gordon was injured when he fell from a ladder while sandblasting a railroad car. Important to the understanding of the court's decision is the fact that Mr. Gordon's injuries were caused by the sandblasting gun, which malfunctioned and continued to operate after the plaintiff fell to the ground, causing severe facial abrasions. Apparently, the sandblaster had a defective trigger mechanism which allowed it to continue to operate after the plaintiff lost control of it during the fall. The court addressed several issues involving Labor Law §240(1). All were decided in the worker's favor. The court determined:
1. 240 applies not just to work in a building but to any manmade structure such as a railroad car.
2. The property owner where the accident occurred was liable, even if it had leased the property to plaintiff's employer and exercised no supervision or control over its lessee's operation.
3. The property owner where the accident occurred was liable under §240 even though the railroad car was an independent (and mobile) "structure." The presence of the rail car on the property was a "direct result" of the owner's actions, establishing a basis for the owner's liability.
4. Despite the fact that Mr. Gordon had been repeatedly instructed to use a scaffold, and not a ladder, did not excuse the owner from responsibility for the accident, because mere instructions to use a safety device, or to be careful, do not amount to compliance with the statute. Defendant must show that the safety device was actually provided and that it was available at the immediate work site.
5. Defendants were found liable despite the fact that Mr. Gordon's most significant injury was caused by the sandblasting gun and not from the direct application of the force of gravity. The court held that since Mr. Gordon was performing his work at an elevated position, subjecting him to the risk of injury as a consequence of the forces of gravity, it was incumbent upon the defendants to provide him with appropriate safety devices. The ladder did not serve its core objective of preventing the plaintiff from falling. The defendant's failure to provide appropriate safety devices was a substantial cause leading to plaintiff's fall and subsequent injuries. Although the injuries were directly caused by the malfunctioning sandblasting gun, it was nonetheless a normal and foreseeable consequence of defendant's ultimate failure to provide appropriate devices to prevent the fall.
In October of 2003, the Court of Appeals in Robert Striegel v. Hillcrest Heights Dev. Corp. 100 N.Y.2d 974 800 N.E.2d 1093, 768 N.Y.S.2d 727 (2003), clarified what type of injury is covered by Labor Law §240(1). Striegel, a roofer, was laying down felt and shingles to the roof of a house under construction. While walking along the ridge of the roof, with a roll of felt on his shoulder, he slipped and as his body twisted he heard a "loud crack" from his back. After sliding some 15-20 feet down the roof to its edge, his pants caught onto several protruding nails which ultimately prevented him from falling to the ground below. The court determined that Striegel had not been provided with any safety devices whatsoever which resulted in his fall from the top of the roof all the way down to the eaves, a distance of approximately 15-20 feet. Safety devices would have prevented him from falling as he did and that "the application of §240(1) does not hinge on whether the worker actually hit the ground." The court specifically rejected the defense argument that only those injuries caused by the plaintiff's collision with the ground below are injuries recoverable under §240(1).
When does a falling object which strikes the worker come within the terms of Labor Law §240(1): Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259
In May of 2001, the Court of Appeals rendered its decision in Narducci v. Manhasset Bay Associates and Capparelli v. Zausmer Frisch Associates, 96 N.Y.2d 259 (2001), which identified the outer limits of §240's application to the falling object theory of recovery. Narducci was injured while he was standing on a ladder, removing a window frame from the front of a building when a large piece of a glass from an adjacent window fell upon him, causing a severe laceration to his arm. Capparelli, an electrician, was injured while he was standing on the fourth step of an 8-foot step ladder installing an electrical light fixture when it fell, cutting his right hand and wrist. In both cases, the workers did not fall from their position upon their ladders. Stating that liability under §240 is contingent upon the existence of a hazard contemplated by the statute, the Court of Appeals, quoting from Rocovich v. Con. Ed., 78NY 509, stated that §240(1) applies to falling objects only when the falling object is related to a significant risk inherent in the elevation at which materials or loads must be positioned or secured. Therefore, a plaintiff must establish that the object fell while the object was being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. It is not sufficient for the plaintiff merely to establish that he may have been performing work at an elevated height and that the injury could have been avoided by using a different type of safety device. The Court determined that the hazard posed by working at an elevation was the danger of falling. The danger of being struck by a falling object while standing on an otherwise safe work platform is a different risk, which arises from different construction practices. The hazard from one type of activity (i.e.:, safety devices to protect workers from falling) cannot be transferred to create liability for a different type of accident.
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