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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. 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). 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. 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.

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 YOUR 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. 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.

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". 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. 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.

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. 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." Therefore, if the plaintiff can show no such devices were provided for the work, the violation of the statute becomes obvious.

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. 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. 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. 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.

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.

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. 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. 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.

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.

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