A. Labor Law §241(6) is not an absolute liability statute because the statute itself does not set forth specific standards of conduct which must be followed; rather, the statute refers to standards contained elsewhere. However, the statute does impose vicarious liability on owners/agents and contractors, even if they do not direct or control the work. Unlike a claim under §240(1), issues of comparative negligence are relevant under §241(6) and evidence of such negligence will normally preclude the granting of Summary Judgment on the issues of liability.
More often than not, the plaintiff is trying to defend against a motion for Summary Judgment seeking dismissal of plaintiff's §241(6) claim. Whether plaintiff is making a motion for Summary Judgment on the issues of liability, or defending defendant's motion for Summary Judgment dismissing plaintiff's §241(6) cause of action, plaintiff must submit proof to establish each sub-part of the statue:
1) Defendant is either an owner/agent or a contractor;
2) The statutory defenses do not apply, i.e., the building being worked on is not a 1-2 family home owned by the defendant who does not direct or control the work and defendant is not an architect/engineer who does not direct or control the work;
3) The work taking place was either in the nature of constructing or demolishing a building or excavation work in connection therewith;
4) There is a specific "concrete" Rule 23 violation that covers the circumstances of the accident.
5) Plaintiff is a member of the protected class (construction worker, person permitted or suffered to work on a construction site, or a worker who is lawfully frequenting the construction site);
6) In Rizzuto, the Court held that "...once it has been alleged that a concrete specification of the code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury". This language adds two more "subelements":
a) once a violation of a code rule has been found the trier of fact must then determine if that violation amounted to negligence; and
b) the negligence must have been committed by a party to the construction project.
7) Plaintiff is not comparatively negligent. (See paragraph "B" below).
Generally, proof of each of the necessary elements under §241(6) can be established through the pleadings, notices to admit, document discovery such as construction contracts, plans, specifications, building permits, etc. These devices will commonly 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 defendants own), worker's compensation reports, depositions and/or affidavits from witnesses will usually establish the remaining elements.
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.
B. Comparative Negligence:
Although it is uncommon to find a plaintiff involved in a construction accident who is not at least partially at fault for their own injuries, plaintiff's counsel should not abandon all hope of defeating the defense. When dealing with a situation where comparative fault may be applicable, the first step to take is to thoroughly review the answer. If plaintiff's comparative negligence has not been raised as an affirmative defense, it should not be an issue in the case. If the defendant does assert such affirmative defense(s):
1) Serve a demand for a bill of particulars. Often times defendants fail to comply, allowing plaintiff to preclude proof on this issue.
2) Another method of proving plaintiff is free from comparative negligence is to take the deposition of all defendants and witnesses who were at the site. Ask them point blank, "What, if anything, did the plaintiff do which contributed to his accident?" Many times the witnesses (often members of the same union as plaintiff) will answer, "nothing."
3) Plaintiff can also submit on the motion an affidavit from an appropriate expert who will affirmatively establish the plaintiff was not comparatively at fault.
4) Occasionally defendants do not respond appropriately to a S/J motion (opposing only with attorney's affidavit) and therefore do not raise a triable issue of fact, even on the issue of comparative negligence. Be prepared to point this out on plaintiff's reply papers on the motion.
There are three basic arguments utilized by defendants in opposing a motion for summary judgment under the Labor Law. First, convince the court that the accident scenario is outside the scope of the Labor Law statute relied upon by the plaintiff; second, claim that even if the statute does govern the work taking place, there still exists an issue of fact as to one or more of the essential elements; third, and currently the most frequently seen, is the proximate cause argument that the accident was caused solely as a result of the plaintiff's own actions or his/her recalcitrant behavior in failing to use the safety devices supplied. Unless properly addressed, these defenses may create a sufficient legal basis to defeat the motion or enough confusion so as to prevent the plaintiff from being granted judgment on liability.
A. The accident is not within the scope of the Statute relied upon.
There are several potential avenues which may be exploited by the defense to support an argument that the statute relied upon by the plaintiff does not apply to the factual scenario giving rise to the accident. For example, on a Labor Law §240(1) motion the defense will look for viable arguments such as, the plaintiff is not within the class of individuals protected by the statute because the activity giving rise to the plaintiff's injuries is not an activity specified within the statute. In Panek, the FAA, after moving from the old airport control tower to the newly constructed tower, hired the plaintiff's employer to retrieve a large air handling unit from the recently vacated premises. The County of Albany had given the FAA permission to remove any fixtures they wanted from the old tower before the County and the contractors they hired to demolish the building. The defense argued that the activities the plaintiff was performing was classified as "salvage" work and cited several lower court decisions holding salvage work is not within the statute. The plaintiff argued the work being performed was part of the demolition project and further the removal work constituted an alteration to the building as defined within Labor Law 240(1). The Court rejected plaintiff's argument as to demolition work since the plaintiff and his employer were not hired to demolish the building. However, the court accepted the plaintiff's argument that his work constituted alteration work within the meaning of the statute rejecting the defendant's argument that alteration work must be performed on a building or structure which is not scheduled to be demolished. The defense recognized that if the court viewed plaintiff's activities as being salvage work, there was ample precedent to support a dismissal of plaintiff's §240(1) claim. Thus, an attempt was made to create a mental picture in the court's mind that the plaintiff was salvaging the old air handling unit. To counter this potential defense the plaintiff must first anticipate this potential argument and to take the initiative in verbally painting a scene in the court's mind of the plaintiff performing alteration work to the building and blocking any attempt to have the court view the activities as salvage work.
Another example of this occurs when the defendant attempts to have the court look at the activity plaintiff was performing at the very instance of the accident, and to judge the applicability of the statute on that basis only and to ignore the context in which the plaintiff's act was being performed. In Covey, the activity the plaintiff was performing at the time of the accident, changing hydraulic fluid in a backhoe, was certainly routine maintenance work. The court held, however, that section 240(1) allied nonetheless since the plaintiff's work was an essential part of completing the overall construction project. Despite the statute failing to specify the action of the plaintiff as a covered activity, the plaintiff is afforded protection under the Labor Law section if the activity is an integral part of the overall construction project. The Court had a similar holding in Lombardi where the plaintiff who fell while trimming a tree was found to be within the scope of 240(1) even though trimming of a tree is not generally covered under the statute. Normally, tree trimming is not an activity covered under the Labor Law provision because a tree is not a structure within the statutory definition. However, the court held that tree trimming activity had to be done in order to make way for the foundation of a building to be erected and as such, the activities were an integral and necessary part of the overall construction project.
This same argument has been adapted to other required elements under Labor Law 240(1) statute such as an argument that the plaintiff is not within the class of people intended to be protected by §240(1) because the plaintiff was performing inspection work at the time of the accident and inspectors are not within the class of workers covered under the statute. In Prats, the plaintiff's employer was hired by the defendant to inspect all air conditioning units at the World Trade Center complex and repair those which were not working properly. The plaintiff was injured when he fell from a ladder while in the process of inspecting a specific unit. The defense argued that plaintiff was performing inspection work at the moment of the accident and therefore was not performing work within the scope of §240(1). The court rejected this argument pointing out that the project which was taking place included extensive repairs to the air conditioning system in the several buildings that make up the World Trade Center. As part of the overall project, the plaintiff had to first identify which units were in need of repair before the repair work could take place. The plaintiff's activities, according to the court, must be placed within the proper context of the overall project. If the work the plaintiff was performing is a necessary step in the process of completing the overall project, the plaintiff will be covered as long as the project is within the scope of the enumerated activities in §240(1).
If this argument can be anticipated the plaintiff can initiate steps to prevent the defendant from this "slice and dice defense" by emphasizing at the outset that plaintiff was employed on a project which was covered within §240(1) and that the immediate task being performed was an integral and necessary part of the overall project. Another suggestion is to be prepared to distinguish the cases cited by the defense in opposition. For every case cited by the plaintiff in support of their motion, the defense can cite two cases which appear to have identical facts which support their opposition argument. With just a bit of research, often facts can be discovered which do not appear in the court's decision which can aid in explaining why it should not be considered authoritative on the motion. A good example of this occurred in Wenenger v. Hagadorn where the court's decision simply states that the plaintiff, who fell from a ladder was not entitled to summary judgment because the jury may find that the plaintiff's own actions were the sole cause of the accident. Superficially, the decision, as worded, would appear to suggest that all a defendant need do to defeat a motion is to claim that a jury may find the accident was caused by the plaintiff's own activities. Even though this was not the intent of the Court, during the next several months, this defense was raised in nearly every §240(1) motion. The Weinenger record on appeal reports that the plaintiff was injured when he stepped on the cross bar of an otherwise safe step-ladder causing it to fall over. This information was not mentioned in the Court of Appeal's decision. Not until this information became widely known was Weininger eventually brought back into proper perspective. It is suggested that either a complete review of the record on appeal or a simple telephone call to the one of the attorneys involved in the case can often provide the necessary insight needed to distinguish the holding.
B. There exist questions of fact.
The objective here to is convince the court that there exist questions of fact on one or more of the necessary elements to prove liability which requires a resolution by jury trial. This can take on the form of an attack on the plaintiff's credibility. Despite the fact that summary judgment should not be denied to the plaintiff simply because the plaintiff is in sole possession of the facts (i.e. there were no witnesses to the accident) the motion should be denied if the plaintiff's credibility is properly placed in issue. The credibility issue, however, must involve a necessary element on the issue of liability and not simply be a conflicting version on an issue irrelevant to matters of liability. This is illustrated in McCann where the issue of plaintiff's credibility on how severely he was injured in his fall from a ramp had no bearing on liability. Another example occurs when the defense opposes the motion on the grounds that the jury may find the accident never happened. In Smith, the court noted that the defendants did not challenge plaintiff's account of the fall but were merely pointed to factual details which under the circumstances of that case did not warrant denial of the motion. Apparently both plaintiff and defendant agreed that injuries occurred when the plaintiff fell from a ladder. Defendant, however, argued that there was a question of fact as to whether the plaintiff lost his balance or whether the ladder slipped. The court did not agree. There were no eye witnesses to the event and the court stated that the affidavit of the plaintiff was not ambiguous. Therefore, because the defendant agreed that the plaintiff's injuries were sustained because of the fall from the ladder and because the defendant was unable to offer any proof in opposition of the plaintiff's facts, summary judgment is appropriate.
One of the best methods of negating this potential defense is to take whatever steps are necessary to insure the plaintiff does not give any inconsistent statements and to keep the plaintiff's affidavit on the motion confined to addressing only the necessary elements to establish liability. The more details and irrelevant factual material presented, leads to a greater potential for the appearance of a question of fact. Remember, most courts are preconditioned to immediately denying motions for summary judgment on liability if it can be shown there exists an issue of fact. Once a statement in the moving papers is questioned the plaintiff is now on the defensive attempting to persuade the court that the facts now at issue are not necessary elements of the claim. To avoid going down that road limit the plaintiff's factual statement to cover only the necessary issues.
C. The Proximate Cause Defenses: Weininger, Blake, and the Recalcitrant Worker
The current hot bed of litigation under the Labor Law involves the issue of whether it was the plaintiff's activities which caused the accident as opposed to any violation of the statute by the defendants or their agents. It is in this context that the legal issues of comparative negligence versus the notion of absolute liability can be misinterpreted. In legal terms, this type of defense is a proximate cause argument. Stated simply, the accident did not occur because the defendant violated the terms of the statute, it was caused solely as a result of what the plaintiff has done. It must be clearly noted from the onset that the key word is solely; if the defendant violated the statute and the violation is a substantial factors in causing the accident, then anything the plaintiff does to contribute to the accident is no more than comparative negligence, which is not a defense to one of the absolute liability provisions of the Labor Law. If the plaintiff's activities were the sole cause of the accident then as a matter of pure logic the defendant did not violate the statute since these two propositions cannot occupy the same ground.
The beginnings of the proximate cause defense first appeared in the Fourth Department decision of Smith v. Hooker Chemical & Plastics Co. and has evolved over time. In Smith, the plaintiff was injured when he refused to use the safety planking provided to a roofing crew to prevent their fall through the roof of defendant's building. Despite the fact that he knew of the dangers and affirmatively refused to use the safety devices provided to him. Under these circumstances the court held that the defendant should not be held responsible since the plaintiff had been provided with adequate safety devices and it was only due to the plaintiff's affirmative refusal to use them that the accident occurred.
For several years after this decision, most courts required that there be an affirmative offer of a safety device to the plaintiff and an affirmative refusal by the plaintiff to use the safety device in order to establish the recalcitrant worker defense. By referring to these distinct elements, the Court and litigants could clearly make a distinction between a viable recalcitrant worker defense and simple comparative negligence. Frequently, out of desperation, a defendant would oppose a motion for summary judgment by trying to take whatever facts were available and argue that the plaintiff should be denied the motion on the grounds that he is a recalcitrant worker, even if there was no affirmative offer and affirmative refusal. Inevitably, there have been defense decisions which have denied summary judgment to the plaintiff, thereby forcing the case to trial on grounds that the defendant had established a viable recalcitrant worker defense, even though there was no showing of an affirmative offer of a safety device and an affirmative refusal by the plaintiff. Whether these decisions were founded upon confusion, misunderstanding, or simply the Court's individual frustration with the absolute liability provisions of the Labor Law, plaintiffs from time to time would be denied summary judgment on less then a sufficient set of facts to establish the "original recalcitrant worker defense". These decisions in turn gave rise to the more frequent use of the recalcitrant worker argument, leading to more and more decisions which attempted to enlarge it beyond its original scope. Indeed there are now several seemingly conflicting decisions not only between the various Departments but also among judges within the same court and even decisions from the same judge.
1) The recalcitrant worker defense does not apply where the defendant fails to provide any safety device or where the safety device provided is inadequate or defective.
Before any attempt is made to apply the recalcitrant worker defense to a given set of facts, a clear distinction must be made between whether you are dealing with a situation where the defendant is:
a.) partially at fault for causing the accident (i.e. defendants failure to provide a safety device is in part to blame for the accident), or
b.) where defendant did provide an adequate safety device but plaintiffs refusal to use it was the sole cause of the accident (i.e. sole causation).
When analyzing the case law, only the second situation should result in a bar to a plaintiff's recovery under §240, or for that matter 241(1-5) and 241-a. The reason is that in the first situation the accident was caused, at least in part, by defendant's failure to provide an adequate safety device. Under these circumstances the defendant's breach of the statue must result in the imposition of absolute liability upon the defendant. The plaintiff's actions, even if it amounts to the refusal to use a safety device, can be nothing more than comparative negligence. Since comparative negligence is not a defense to a defendant's violation of the statue, the plaintiff is entitled to judgment, even if the plaintiff was recalcitrant. In the second situation the only cause of the accident was the plaintiff's failure to use a safety device, which was provided. Under these circumstances, the defendant did not breach the statue and the defendant cannot be held liable for the happening of the accident.
This principal has been enunciated by The Court of Appeals in several of it's decisions. In Stolt, the plaintiff was injured when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder plaintiff fell from broke about a week before the accident and the plaintiff had been instructed not to use it unless someone was there to secure the ladder. Disregarding warnings, plaintiff used the ladder without assistance when his supervisor left the area. The court held the mere fact that the plaintiff disobeyed his supervisor's instructions by climbing the ladder did not provide a proper defense against plaintiff's claim under §240. The Court further stated that it was "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractors liability by failing to provide adequate safety devices". The decision pointed out that plaintiff's injuries were a direct result of the failure by defendant to supply a safe ladder or other devices to give proper protection to the plaintiff. In brief, the accident was caused at least in part by the defendant's failure to comply with the terms of the statute.
Turning its attention to the recalcitrant worker defense the court held "it has no application where, as here, no adequate safety devices were provided." In VanAlstyne v. New York State Thruway Authority, the court rejected defendant's argument that plaintiff was a recalcitrant worker and liability should not be imposed because plaintiff's injury from the fall off a girder on a bridge rehabilitation project was caused by claimant's failure to "tie off his lanyard on the available static line." The court stated that once plaintiff established that the fall was caused by defendant's failure to comply with the statue "any negligence on the part of the injured worker will not relieve a defendant of it's absolute liability".
Milewski v. Caiola provides another example of this principal. Here, the plaintiff disregarded a co-worker's advice that the plank he was laying on, which was across the top of an elevator shaft, was unsafe. Plaintiff fell from the plank, and there was conflicting deposition testimony whether he was wearing his safety harness at the time of the fall and whether he was properly tied off. In affirming S/J the decision pointed out "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exists that the failure to provide proper safety planking was a more proximate cause of the accident."
2) Mere warnings or instructions are insufficient to establish the recalcitrant worker defense.
No matter how many times a worker is told not to do an unsafe act or to be careful, an otherwise valid 240 claim cannot be defeated by a claim that the plaintiff is a recalcitrant worker. In Gordon, the court held that "an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment." Evidence of instructions alone does not support a recalcitrant worker defense.
3) Mere availability of a safety device somewhere on the work site is insufficient to prove recalcitrant worker defense.
The statute places an absolute duty on the owners and their contractors and agents to properly place and erect appropriate safety devices. This duty is not satisfied by the defendant showing that appropriate safety devices were located somewhere on the job site. As held in Hall, "an owner and contractor do not fulfill their statutory obligation and thereby escape the imposition of absolute liability merely by demonstrating that there was present somewhere at the job site a ladder which might have been used by a worker for the safer performance of his assigned work.
4) The defendant must establish that plaintiff has refused to use the safety devices provided.
The simple failure of the plaintiff to use a safety device, even one that has been provided will not be sufficient to raise a valid recalcitrant worker defense. There must be proof that the plaintiff purposefully refused to use it. There must be proof that the plaintiff refused to take advantage of alternative safer means to perform his work or that he refused to use a safety device, which was provided.
While this rule is fairly simple to recite, its application to any given set of facts is not. Jastrzebski was a 3:2 decision, the majority held that the jury's determination that plaintiff acted as a recalcitrant worker was supported by the evidence. Plaintiff had been working on a ladder when his supervisor instructed him to get off the ladder and to use the scaffold which was erected and in place at the site. The Court noted that although plaintiff had indicated his assent to the directive and got off the ladder, he re-climbed the ladder as soon as his supervisor turned his back and began to walk away. Shortly after ascending the ladder a second time, the plaintiff fell sustaining his injuries. The majority refused to apply Gordon, on the grounds that "implicit in Gordon is that the recalcitrant worker defense has no application where no adequate safety devices were provided... In this case, unlike Gordon, scaffolding had been provided and was available for use by the plaintiff who refused to use it contrary to direct orders to do so." The majority also noted that the defendant in Jastrzebski gave immediate and direct instructions, through plaintiff's supervisor, not to use the ladder. This, the Court felt, was significantly different and distinct from the passive instruction in Gordon to use the scaffold instead of the ladder. Importantly, the majority's decision in Jastrzebski held "there was no evidence in Gordon that the plaintiff had knowingly refused a direct order as the plaintiff in this case had." The Court went on to say there is nothing in Gordon that requires the plaintiff "to tell his supervisor to his face that he was not going to obey him in order for the defendants to avail themselves of the recalcitrant worker defense." Thus, under the totality of the circumstances, the plaintiff's refusal to use the available safety device could be implied. However, Judge Bracken, with Judge Krausman concurring, noted that Gordon could not be distinguished as the majority decision purports to do. They argue that in the Gordon case there was no proof that the scaffold plaintiff was told to use was not available for use at the site. They claim that the Appellate Division in Gordon, which recites more facts than the Court of Appeals decision, demonstrates that a scaffold was readily available for plaintiff's use and therefore Gordon required a plaintiff's verdict in Jastrzebski. Here it can be said the majority believed plaintiff's acts spoke louder than words of refusal.
Similar reasoning was used in Hickey v C.D. Perry and Sons, where the plaintiff was injured when the 2 x 10 inch plank he was on, stretched over a sluiceway, broke under the weight of his 370 pound body. The defendant, in furtherance of its recalcitrant worked defense, submitted that there were ladders supplied, and in place, which were to be used to climb down into the sluiceway so one could walk across the bottom and to the other side and up another ladder. Also, the defendants were uncertain why the plank was placed where it was and that the defendant ordered its removal on more than one occasion and that they had removed the plank before to stop workers from using it. The court stated this created a sufficient issue of fact on the recalcitrant worker defense, presumably on the belief that there was sufficient circumstantial evidence that the plaintiff affirmatively refused the safety device provided by defendant (i.e. the ladders). Again, this court inferred plaintiff's refusal to use the ladder by his acts.
Also, in January of 1996, the Third Department decided Vona v. St. Peter's Hospital. In Vona, the plaintiff was a painter who was about to cover the armature of a door at defendant's premises. The plaintiff was specifically directed by one of the defendant's foreman to obtain a stepladder to perform the work. Instead, the plaintiff stacked two five-gallon pails on top of one another and stood on them to reach the top of the door. The Supreme Court denied the plaintiff's motion for summary judgment, holding that there was a question of fact as to whether Vona was a recalcitrant worker for failing to use the stepladder. The Third Department unanimously held that based upon the proof that there was a stepladder within ten feet of where the plaintiff fell, a jury could conclude based upon the evidence presented, that defendant had provided plaintiff a safety device which was erected and in place (stepladder which was ten feet away) and that plaintiff was aware of this fact (circumstantial evidence that the ladder was within plain view of plaintiff) and that the plaintiff's failure to use the ladder could be construed as an implied refusal to use a plainly visible safety device. Here the court felt that a jury could infer both the act of defendant providing a safety device as well as plaintiff's refusal to use it.
Six months later, in June 1996, the Third Department decided Watso v. Metropolitan. Here, the plaintiff was wearing a safety belt with an attached lanyard five feet long. The plaintiff was not tied-off to the safety line, which was erected and in place when he fell from his elevated workstation while welding the floor joists which were being installed. The defendant argued that the plaintiff's injuries were caused by his refusal to tie-off to the safety line, and therefore he was a recalcitrant worker. Plaintiff argued that the lanyard was only five feet long and that he would not be able to tie-off to the safety line since he was welding in a position eight feet away from the safety line. The defendant offered evidence that the safety line was not taut, but rather loose and capable of being stretched out to the location where the plaintiff was working so that he could tie-off. The Court held that the defendant produced evidence from which a jury could find that the plaintiff, rather than being tied-off to the safety line, purposefully did not do so, and therefore caused his own injuries as a result of being recalcitrant.
Thus, there now seems to be authority at the Appellate Division level that once the defendant establishes plaintiff was provided appropriate safety devices, at least under certain circumstances, the jury may find that the plaintiff purposefully refused to use the devise, so as to spell out the recalcitrant worker defense, based upon circumstantial evidence.
Due to this recent "stretching" of the recalcitrant worker defense, many defendants are now arguing that all they need do is show that there is a safety device somewhere on the job site and S/J should be denied so as to allow the jury to determine whether: 1) Plaintiff is aware the safety device is present on the job site, and 2) That the plaintiff's failure to use it constitutes a purposeful decision not to use it. This type of an argument tends to obliterate the distinction between contributory negligence and a true recalcitrant worker, and often times runs contrary to the Court of Appeals decisions which have held that mere instructions do not give rise to a recalcitrant worker defense and that a safety device must be provided and erected and not just located somewhere on the job site.
An example of this appears in the dissenting opinion in Tennant v. Curcio. In Tennant, the plaintiff and his co-worker were instructed by their employer to tie the ladder off to the top of the building before they began to use it. The defendant also submitted proof that the rope was in the truck that the plaintiff and his co-employee took to the job site. The co-worker set the ladder up without tying it off, and plaintiff was injured when he was attempting to descend the ladder when it slid along the side of the building falling to the ground below. The majority held that there was no issue of fact since the defendant's instructions to use the rope did not constitute the providing of a safety device to the plaintiff, and there was no showing where on the job site the rope was located. This, according to the Court, was nothing more than the defendants providing mere instructions and demonstrating that there was a safety device somewhere on the job site. The dissenting opinion however argued that the majority's position now requires that the recalcitrant worker defense can only be established "where an employee disregards an instruction and the required safety device is visible (as opposed to available) at a work site." The dissenting opinion argued that the Third Department's previous decisions in Hickey and Vona had eliminated the requirement of proof to establish that the safety device was erected and in place on the job site before the defense could be used and all that was now needed was to show that there was available (somewhere on the site) a safety device and the plaintiff was instructed or warned to use it. The minority decision went on to answer its own apparent question by stating that the rule, even in the Third Department, is that it is necessary to prove that an employee disregards an instruction and the required safety device is visible (as opposed to available) at the work site.
The major issue on appeal in Weininger was whether the plaintiff, who was installing telecommunication cables into a drop ceiling when he fell, was performing alteration work within the meaning of the statute. Without detailing the facts as to how the plaintiff fell from the stepladder, the court ruled that in fact he was performing alteration type work within the meaning of the statute. However, the court sent the matter back for a trial on the issue of whether the plaintiff's acts were the sole cause of the accident. A quick reading of this case might result in the incorrect interpretation that the Court of Appeals was now allowing a plaintiff's comparative negligence to be considered by a jury on a labor law §240(1) claim. In reality the Court of Appeals was simply restating what had always been a necessary element for a plaintiff's §240(1) claim; that the defendants violation of the statute was a proximate cause of the accident. The Weninger case can more easily be understood if the defendant's allegation in the case that the ladder tipped over when the plaintiff decided to step from the ladder rungs onto the crossbar hinge. If a jury were to accept this factual version of how the accident occurred it would be within their domain to conclude that there was nothing wrong with the ladder itself, nor with the manner it was placed. If so found by the jury, there would be no violation of §240(1) having been committed by the defendant. Although it is not disputed that the plaintiff fell from a ladder the incident can be determined by a jury to have been caused only because of what the plaintiff did and not because of anything the defendants did or failed to do. This has caused the defense bar to search for a factual scenario under which a jury could conclude that the plaintiff could be found exclusively at fault for his/her own accident.
Blake involved another unique factual pattern where the plaintiff was injured when the extension ladder he was on suddenly retracted causing him to fall. In the pleadings and his deposition the plaintiff acknowledged that he owned the ladder, had frequently used it, it had adequate rubber shoes, did not have any defects, that he had set it up in the position it was at when the accident occurred, that it was securely in place and did not need to be secured in any manner. The plaintiff moved for summary judgment claiming that he was entitled to judgment because he fell from a ladder while performing activities covered under §240(1). The defendant moved for dismissal indicating that the accident was not caused by any violation of §240 committed by the defendant, or in the alternative the motion should be denied since a jury may find that the accident was caused solely by the plaintiff's acts and not by anything defendants did or should have done.
The First Department Appellate Division affirmed the lower court's decision that there were essential facts which were to be resolved by trial. At the trial the plaintiff testified to the facts which were stated in his moving papers and additionally testified that he was not sure he locked the extension clips in place before sending the ladder. The jury, upon their answers to the written interrogatories, found that the ladder the plaintiff was using was in fact "so constructed and operated as to give proper protection to the plaintiff." The courts entered judgment in favor of the defendant which gave rise to the appeal of the plaintiff to the Court of Appeals. The court affirmed judgment in favor of the defendant noting that there was nothing in the record to demonstrate that the ladder was improper, defective, improperly position or erected, and, after a full jury trial, the trier of facts concluded that the defendant had complied with the mandate of §240(1). From the jury's verdict there was nothing in the record that would require the reversal of the judgment. The court further stated that the purpose of Labor Law §240(1) is to compel contractors and owners to comply with the law; however, the statute does not make the contractors and owners insurers. Just because a plaintiff sustains an injury does not automatically equate to liability. There must be a showing that the statute was in fact violated. Moreover, the word absolute does not refer to absolute responsibility (even where the statute is not violated) but the term absolute describes the nature of the non-delegable duty imposed upon contractors, owners and their agents. This duty is "absolute" and cannot be delegated away. But, liability cannot be imposed unless the plaintiff can establish the other necessary element of showing the statute was violated and the violation was a proximate cause of the accident. Once the plaintiff has established this, anything done by the plaintiff that has a bearing on the happening of the accident can be nothing more than comparative negligence and must not be considered on granting or denying the motion.
While Blake can be adequately distinguished from cases in which a jury has not already determined all the question of fact, the decision nonetheless provides adequate warnings to plaintiffs that no longer will it be sufficient simply to establish that the plaintiff fell from a ladder which resulted in injuries.
The plaintiff's must be prepared to establish, whether on motion or at the trial, that there was a precipitating event or factor which caused the fall and that event or factor arose because §240(1) was violated. In other words, the plaintiffs will have to show some factual basis (i.e. the ladder was broke, defective, not properly placed, collapsed, slid out, etc.) which could support a conclusion that the statute had been violated and the violation was a proximate cause of the accident.
