Road Map To A Safer Place to Work

General Rules of Law Under Section 240(1) Labor Law

Rule #1: Absolute liability or strict liability refers to the non-delegable, vicarious responsibility of owners, contractors and their agents for non-compliance with the statute.

In the realm of the Labor Law, the use of terms such as "absolute," "strict liability," "non-delegable duty" does not always mean what it says. Judge Rosenblatt warned us, "It is imperative, therefore, to recognize that the phrase 'strict (or absolute) liability' in the Labor Law §240(1) context is different from the use of the term elsewhere." Blake v. Neighborhood Hous. Serv. of N.Y. City, Inc.¹

The case law stating that the duty to comply with the statute is non-delegable does not mean that the owner, contractor or their agents cannot delegate the duty to another by contract. It refers to the inability of the defendant to avoid ultimate responsibility to comply with the statute, even if they do choose to completely delegate this responsibility to another and divorce themselves from any direction or control over the work. Under common law, an owner of premises or their general contractor cannot be held liable for injury caused on the site unless it can be shown that they had the power to direct and control the work which gave rise to the injury. Section 240 (and for that matter 241 and 241-a) eliminates the issue of control from these cases, and imposes liability even upon the "out of control owner." The defendants are always "absolutely" responsible for any breach of the statute which proximately causes injury. This does not make defendants insurers against all gravity related injuries, but it does make them responsible for one hundred percent of the damages which were proximately caused by a violation of the statute. Blake¹ Long v. Forrest-Fehlhaber.¹³

Rule #2: Comparative negligence is not a defense to an injury proximately caused by a violation of the statute.

1. Plaintiff cannot recover if plaintiff's actions were the sole cause of the accident. Weininger v. Hagadorn & Co.²⁸

2. Plaintiff's acts cannot be the sole cause of the accident if defendant did not comply with the statute and the violation is also a proximate cause. See Blake1

3. There may be more than one proximate cause of an injury. See PJI 2:71

4. Therefore if the statute was violated (and it's a proximate cause of the injury), the plaintiff cannot be the sole cause of the injury, only a contributing cause. Logic 101.

5. Since comparative negligence is not a defense then the defendant is 100% responsible for the injury. Rule #1.

Rule #3: A defendant may delegate to another, by contract, the duty to comply with the statute but cannot delegate away the first instance responsibility to pay plaintiff damages if the person to whom the duty was delegated fails to comply with the statute.

This is the absolute vicarious liability imposed by the statute. Here absolute does not refer to absolute in the sense of an insurer's liability but to the inability to avoid ultimate responsibility if there is a breach of the statute. The liability imposed upon the owner (or a contractor who subcontracts the work to another) is liable in the same manner as an owner of a vehicle under Section 388 of the V & T Law.

This will be true even if it was the plaintiff who ultimately assumed the responsibility to comply with the statute and fails to do so resulting in his/her own injuries. Rule #1 makes all owners, contractors and their agents 100% liable for compliance with the statute. If the duty is delegated to another the defendant may have a good claim over and against the assignee of the duty but will still remain responsible to the plaintiff in the first instance for its breach. If the plaintiff is ultimately the person to whom the duty to comply was delegated and it is the plaintiff who fails to comply with the statute, the defendant is nonetheless 100% liable for plaintiff's damages. Plaintiff's failure, even though it may be described in such a way that "but for plaintiff's failure" or "the only reason the plaintiff got hurt (100% or sole cause) is because he/she failed to carry out the very work they were hired to do" cannot be used to defeat the claim. This is so because once it is shown that the statute has been violated and the violation is a proximate cause the defendant is "absolutely" liable to plaintiff. The defendant cannot relieve itself from the responsibility by blaming the plaintiff for his/her own failure to carry out the task of complying with the statute. Haimes v. NY Telephone Co.,⁷ Stolt v. General Foods Corp.²⁵ Another way to view this is to recognize that once the plaintiff shows that the violation exists anything the plaintiff does cannot be anything more than comparative negligence which is not a defense. See Blake v. Neighborhood Hous. Serv. of N.Y. City, Inc.,¹ 'it is "conceptually impossible" for there to be both a statutory violation that serves as a proximate cause of plaintiff's injury and an act by plaintiff that serves as the "sole" proximate cause of the injury.'

Rule #4: When the owner, contractors and their agents delegate the duty, by contract or subcontract, each successive person/entity that assumes that duty becomes liable to indemnify the assignor for all damages incurred by the assignor, by reason of the vicarious liability to plaintiff, imposed by the statute, with 2 notable exceptions.

If the defendant is truly free from negligence, then the defendant may recover 100% of its damages over and against (contractual or common law indemnification claims) those to whom it delegated the duty to comply with the statute. Contractors and agents who further delegate the duty on down the line (subcontractor to sub-subcontractor etc.) can also claim over EXCEPT the common law claims for indemnification over against the plaintiff's own employer are sometimes prohibited by Section 11, Workers' Compensation Law (all common law claims prohibited unless the plaintiff's injury is classified as "grave"). However, Section 11 does not prohibit claims against the plaintiff's employer based upon contractual indemnification. Also, due to Rule #3, under no circumstances can a claim over be brought against the plaintiff him/herself. Stolt v. General Foods Corp.²⁵

Rule #5: On a motion for summary judgment plaintiff must prove:

1. The statute applies to the facts of the case.

2. The statute was violated.

3. The violation was a proximate cause of the accident.

Once plaintiff establishes a prima facie case, the defendant must come forward with proof to establish there is a legitimate issue of fact as to one of the three necessary elements in order to defeat the motion.

Rule #5:  On a motion for summary judgment, plaintiff must prove:

1. The statute applies to the facts of the case.

2. The statute was violated.

3. The violation was a proximate cause of the accident.

The Defenses

ATTACKING ELEMENT #1 above: " 240(1) does not apply because….":

1) Defendant is not an owner, contractor or agent.

2) Plaintiff is not a member of the class of people covered by the statute.

a) None of the protected activities was taking place (no erection, demolition, repairing, altering, etc., was taking place)

b) The labeling defense. Maintenance-type work, cutting or trimming trees, salvage type work, falls from trucks, changing of a light bulb, inspection work, changing hydraulic fluid on a back hoe have all been held not to be activities protected by the statute. However, this does not mean that any plaintiff who is injured while doing this work must loose their 240(1) claim. If the plaintiff was doing these otherwise uncovered activities when the accident occurs and these activities are a necessary and integral part of a construction project (or any one of the other covered activities). Prats v. Port Auth. of N.Y. & N.J.,¹⁸ Lewis-Moore v. ConTel.¹¹

c) Plaintiff is not an employee of the owner, contractor or their agents

3) One of the statutory defenses apply (1-2 family exemption, architect/engineer).

4) The statute does not apply to the facts of the accident.

Section 240(1) was intended to cover a very specific type of work. The ultra hazardous activity of performing elevated work. It was not intended to protect against the usual and customary hazards which typically occur on a job site, only those which expose the worker to the dangers of injury due to the forces of gravity. Injuries caused by centrifical forces, lateral forces, tension forces are not covered by the statute. Narducci v. Manhasset Bay Assocs.¹⁶

5) The injury was not a direct consequence of the forces of gravity.

Plaintiffs whose injuries are only tangently related to gravity are not intented to recover under the statute. See Ross v. Curtis-Palmer Hydro Electric Co.,²¹ where the plaintiff claimed a low back injury due to the strain of holding on to prevent his fall off the 2x10 plank he was working on some 40 feet in the air, was held not to be an injury directly due to the forces of gravity. The plank fulfilled its salient purpose of supporting him while he did his work. However, this does not mean that the plaintiff must fall off the ladder, scaffold or other elevated work surfaces in order to recover under the statute, see Striegel v. Hill Crest Heights Dev. Corp.²⁶

6) Plaintiff's credibility is at issue.

The general rule on motions for summary judgment that the motion should not be granted when the movant is in sole possession of the facts does not apply to motions brought under the Labor Law. Therefore, even when the accident was unwitnessed, if the defendant does not come forward with proof which creates a legitimate issue of fact plaintiff is entitled to summary judgment. The argument that the plaintiff is the only one with possession of the facts and therefore the motion should be denied since fairness dictates that a jury pass on the truthfulness of the plaintiff's claim is not an adequate defense, unless defendant produces proof that places the plaintiff's credibility at issue. Examples of this occur when plaintiff gave different versions of how the accident occurs, or where the defendant has circumstantial proof which if accepted by the jury will defeat the plaintiff's claim.

ATTACKING ELEMENT #2 "Plaintiff's injuries were not caused by a violation of the Labor Law"

This defense is nothing more than a proximate cause defense. Simply put the defendant is claiming that the injury the plaintiff sustained was not caused by a violation of the statute. This defense has taken on various forms with different names for each.

A) Recalcitrant Worker: If the defendant has provided a safety device which was properly erected but the plaintiff has willfully refused the use the device the plaintiff cannot recover. This is simply another way of stating that the defendant did comply with the statute (there is no statutory violation). The accident occurred only due to the plaintiff's willful refusal to use the safety device provided. However, mere words and instructions are not the equivalent of providing safety devices. The defendant does not prove entitlement to this defense if the safety device is somewhere on the job site. Also, the defendant must prove either by direct or circumstantial evidence that the plaintiff willfully refused to use the safety device.

B) The defendant did nothing to cause the accident: If the defendant produces evidence, which if accepted by a jury, establishes that the statute was not violated then plaintiff is not entitled to recover. This is the second element of the necessary elements to prove a prima facia case number 2 . If there is no statutory violation then plaintiff cannot recover. The corollary to this rule is that if the statute was violated, and the violation, no matter how small, was one of the substantial factors in causing plaintiff's injury, the defendant will be absolutely liable for all damages to the plaintiff. This is so because once the statute has been shown to have been violated, then anything the plaintiff, or anyone else, does is simply an additional proximate cause of the accident. Blake¹ Article 16 of the CPLR does not apply to Labor Law cases as per Section 1602 (8), therefore the common law principal of joint and severable liability makes defendant 100% liable for all damages to the plaintiff.

C) The Plaintiff was the sole cause of the accident: As referred to above, under Rule #2 and #4, if the defendant delegated all responsibilities for compliance with the statute to the plaintiff's employer (or a subcontractor who eventually subcontracts it to plaintiff's employer) and plaintiff's employer assigns the specific duty to the plaintiff, although it might be true the plaintiff's failure to carry out his own job constitutes the sole cause of the accident, this is an invalid defense. This is so because, plaintiff's comparative fault cannot be used to negate or diminish the statutory benefits of Section 240(1) (Rule #2), and since the defendant cannot escape responsibility even if the defendant chooses to delegate the responsibility (Rule #1). Therefore, when the defendant argues that a jury may determine that the plaintiff was the sole cause of the accident, this does not automatically mean there is a legitimate issue of fact that needs to be resolved at trial and summary judgment must therefore be denied. The defendant must come forward with facts to create an issue and not mere speculation. Also a fine line distinction must be made between when the statute is violated, and when the statute has been complied with but the plaintiff does something which then constitutes the sole cause of the accident, i.e., plaintiff misuses the safety device, refuses to use the safety device.

When As A Matter Of Law Has The Statute Been Violated

Rule #6 When no safety devices have been provided, the statute has been violated as a matter of law. Zimmer v. Chemung County Performing Arts Inc.²⁹

The defendant must provide a worker with some safety device. When the facts demonstrate no device was given the statute has been violated as a matter of law.

Not just any safety device will suffice. The device must be suitable to protect the plaintiff from the specific gravity related harm which proximately caused his/her injury. Thus where the plaintiff is subjected to two or more different related gravity hazards the defendant must provide safety devices to meet not just one but both hazards. See Felker v. Corning⁵, Tassone v. Mid Valley Oil²⁷

Rule #7 When a safety device has been supplied the issue of whether it provides proper protection will normally present a question of fact, except where it collapses, slips or is not properly positioned, or when it otherwise fails to properly perform its function. Beeismer v. Albany Ave/Rte. 9 Realty.²

Exception 1) When the device collapses the statute has been violated. When a collapse occurs, there is a presumption that the safety device was not good enough to afford proper protection. Blake v. Neighborhood House. Serv. of N.Y. City, Inc.¹; Panek v. County of Albany¹⁷; Stewart v. Ferguson.²⁴ There is no requirement that the plaintiff show why it collapsed only that it did. This is so because if it is found to have collapsed then, as a matter of law, it was an inadequate device. Once it is shown to have been violated, the defendant is liable to plaintiff for 100% of the damages. Anything that the plaintiff does can amount to nothing more than comparative negligence.

Exception 2) When the device slips, or is otherwise not properly positioned or erected. The statute imposes an affirmative duty to "furnish or erect, or cause to be furnished or erected…[safety devices]… which shall be so constructed, placed and operated as to give proper protection…" Thus, there are 2 separate duties imposed by the statute, the first is to provide a device and the second is to construct, place it and /or operate it properly. Where it is shown that a ladder is not defective, and is the proper device for the job, but it nonetheless caused the plaintiff to fall because it was placed upon a slippery surface, or slid out from under the plaintiff because it was placed at too steep an angle, or slid along the wall because it was not tied off or was otherwise not secured, the statute has been violated and plaintiff is entitled to judgment. This is true even where the defendant can show that it was the plaintiff who placed the ladder upon the slippery surface, or the plaintiff placed the ladder at too steep an angle or the plaintiff failed to tie off or secure the ladder. This is so because the duty to properly place the ladder was not complied with, which makes the defendant absolutely responsible for the injuries (Rule #1) and anything the plaintiff does can be nothing more than comparative fault which cannot be used to defeat the claim (Rule #2). This is precisely what was presented to the Court of Appeals in Bland v. Manocherian.³ The dissenting opinion by Judge Titone points out that the majority's holding will make defendants 100% responsible (much like an insurer) even under circumstances where the defendant did everything right and the only thing that caused the accident (the claimed sole cause) was the plaintiff's own acts. He described the majority's holding by expressing his personal belief as follows: "More important, I simply cannot accept the notion that there is a duty upon an owner to follow a worker and verify that the worker has "properly placed" a ladder in order for the owner to satisfy the statutory mandate. Such a proposition is, on its face, absurd." Absurd as it may feel to some, the Court of Appeals still stands by the Bland³ decision, See Blake.¹ It's important to keep in mind the critical difference between Bland³ and Blake.¹ In Bland³ a jury determined that the ladder was not properly placed so as to provide proper protection. This is a violation of the statute. In Blake¹, the opposite was true, the jury found that the ladder was properly placed and/or erected, hence there was no violation of the statute. The Blake¹ decision does not pass upon whether the failure of the plaintiff to properly secure the extension ladder's rung latches constitutes improper erection on procedural grounds, see foot note 8 in the decision.

Exception 3) When the device otherwise fails to perform its function (defective or wrong device). If a safety device is defective, and that defect is a proximate cause of the accident then, the statute has been violated because the device failed to provide proper protection. However a device that has been supplied need not be defective for a plaintiff to be granted summary judgment since the plaintiff may prove the statute has been violated through exception #1 or #2.