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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". 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):

7) The plaintiff was on scaffolding or staging that was more than 20 feet above the ground; and

a) 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,

b) 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. 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...)

§241(1) Floors are not filled-in as building progresses, (see statute for specific elements).

§241(2) Under flooring is not laid on each story as building progresses, (see statute for specific elements).

§241(3) The floor two stories immediately below where plaintiff is working was not planked over, (see statute for specific elements).

§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).

§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. 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 t he 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.

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