The New York State Court of Appeals recently upheld three decisions in favor of defendants in cases involving alleged violations of Section 240(1) of the New York State Labor Law. Section 240(1) imposes strict liability on owners and general contractors who fail to provide adequate safety equipment, including, but not limited to, scaffolding and ladders, with the ultimate objective of protecting workers from elevation related injuries on jobsites.
It remains to be seen how trial courts throughout New York State will interpret the three decisions discussed here. For now, these decisions reflect certain trends that are likely to be significant and should be closely monitored in terms of evaluating how Section 240(1) may be treated in the years to come. They may support defense arguments, such as: (1) a fall from height alone may be insufficient to substantiate a violation of Section 240(1) of the New York State Labor Law; (2) certain routine tasks may not constitute an enumerated activity so as to give rise to a violation of the New York State Labor Law; and (3) plaintiff’s failure to properly set up a ladder may trigger a sole proximate cause defense with respect to an alleged 240(1) claim.
A fall from height alone may be insufficient to substantiate a 240(1) violation
In Cutaia v. Board of Managers of the 160/170 Varick Street Condominium, N.Y. Slip Opp. 023834 (April 28, 2022), the Court of Appeals denied summary judgment to plaintiff as to Section 240(1), where the plaintiff, a plumber, fell from an unsecured and unopened A-frame ladder after being electrocuted by exposed wiring. In reversing the Appellate Division, First Department’s decision, the Court of Appeals held that questions of fact, including whether plaintiff’s fall was caused by a deficient ladder or his electrocution, precluded an award of summary judgment. In the past, the Appellate Division has determined in some instances that the mere fact that a plaintiff fell from a height triggered summary judgment under Section 240(1). The recent holding in Cutaia opens the door for defendants to argue that a safety device provided on a jobsite was adequate and proper for the work being completed and, therefore, that another condition or event may have caused the accident.
Routine tasks do not constitute an enumerated activity
The Court of Appeals also recently explored what activities may or may not constitute one of the seven enumerated activities specifically set out under Section 240(1), which would trigger the protections of Section 240(1). The seven enumerated activities are erection, demolition, repairing, altering, painting, cleaning, and/or pointing of a structure. In Healy v. EST Downtown, LLC., 2022 N.Y. Slip Opp. (April 28, 2022), the Court held that a plaintiff who is not engaged in an activity set forth by the statue could not successfully establish a Section 240(1) claim. The circumstances in Healy concerned a plaintiff who was employed by a property manager and was attempting to remove a bird’s nest from a building’s gutter when he was caused to fall from an unsecured ladder.
To determine whether a task may be classified as “cleaning,” the Court of Appeals reiterated the four-prong test set forth in Soto v. J.Crew, Inc., 21 N.Y.3d 562 (2013), which held that tasks excluded from statutory protection are those that: (1) are routine; (2) do not require specialized equipment or expertise; (3) generally involve insignificant elevation risks; and (4) are unrelated to ongoing construction, renovation, painting, operation, and/or repair. In Healy, Plaintiff’s summary judgment motion was granted and affirmed by the Appellate Division, Fourth Department. On appeal, however, the Court of Appeals reversed and held in favor of the defendant, noting that the plaintiff was not involved in one of the seven enumerated activities that are sufficient to warrant liability pursuant to Section 240(1) of the New York State Labor Law. Significantly, the Court of Appeals noted that plaintiff was completing a “routine task” and was not cleaning or otherwise completing a task that might be protected by statute.
The holding in Healy is significant for owner and contractor defendants in that it is consistent with prior decisions, which held that work involving the remediation of common problems (i.e. issues that occur daily, weekly, or at some other relative frequency and that the recurring basis is part of ordinary maintenance and care at a commercial premises) is not protected by statute, and, as such, is insufficient to substantiate liability pursuant to Section 240(1). The decision in Healy affirms that in order to establish a claim under Labor Law Section 240(1) involving cleaning, the work at issue must relate to ongoing construction, renovation, painting, operation and/or repair. We note that plaintiffs often attempt to argue that cleaning, even that which is routine, is protected under Section 240(1). This decision now provides a basis for potential dismissal of such actions at the trial court level.
Plaintiff’s failure to properly set up a ladder may trigger a sole proximate cause defense
In order to establish a claim pursuant Section 240(1) of the New York State Labor Law, a plaintiff is required to demonstrate: (1) that the statute was violated; and (2) that said violation was the proximate cause of his or her injury. The Court of Appeals recently explored the applicability of the sole proximate cause defense in Bonczar v. American Multi-Cinema, Inc., No. 2022-02835 (April 28, 2022), and held that a rational trier of fact could have found in defendant’s favor on the issue of Section 240(1), where it was determined that plaintiff’s own acts or omissions with respect to the positioning of the ladder were the sole proximate cause of the accident.
Specifically, in Bonczar, plaintiff fell from a ladder while performing work on a fire alarm system at the insured’s theater. Plaintiff testified that he ascended and descended the subject ladder numerous times without issue prior to his fall. Significantly, plaintiff testified at his deposition and at trial that he was uncertain why the ladder moved just prior to his accident. He also could not recall if he checked the ladder’s locking mechanism prior to his fall.
Plaintiff filed suit against the defendant theater and alleged a Section 240(1) violation. The trial court granted plaintiff’s summary judgment motion. The Appellate Division, Fourth Department reversed the trial court’s decision and held that questions of fact existed as to whether a Section 240(1) violation actually occurred. The case proceeded to trial which resulted in a defense verdict, finding that plaintiff’s failure to properly and adequately secure the subject ladder was the sole proximate cause of the accident. The Fourth Department affirmed the verdict, which demonstrated that a Section 240(1) allegation may be overcome by showing that a defendant’s actions were not the sole proximate cause of a given accident. The Court of Appeals then upheld the Fourth Department’s decision.
These recent Court of Appeals decisions seem to suggest that the highest court in New York State is, ever so slowly, narrowing the scope of Labor Law Section 240(1). Defendants are now able to argue that a fall from a particular height, on its own and without more, is insufficient for a plaintiff to prevail on summary judgment. Plaintiffs must now show that there was a failure of a safety device or that the device was inadequate for the work being performed. Further, for those specific cases involving cleaning activities, the holding in Healy indicates that plaintiffs must be engaged in cleaning that is directly related to construction (or related tasks) in order to have a viable cause of action under Section 240(1).