Defending Against the Strict Liability of New York’s 'Scaffold Law'

New York’s “Scaffold Law”, Labor Law §240(1), is a strict (absolute) liability statute created to protect workers in the field of construction where injuries, or, in some instances, death occur while performing one or more tasks that are elevation related.

Since its inception, the statute has generated substantial case law attempting to interpret and appropriately incorporate its intended purposes in those matters that come within its ambit.

In my article, Language and the Law (NYLJ, April 7, 2020, p.6, col.4), I stated that “we [attorneys and judges] are often called upon to decipher the ‘legislative intent’ of a statute.” This is especially so with respect to Labor Law §240(1). For decades, courts have often struggled with its application to the facts of each case, where the injured plaintiffs invariably seek summary judgment on the issue of liability. As the body of decisional law has shown, there are generally no black and white answers to the issues in question leaving the attorneys and the courts to draw conclusions by sifting through the grey matter with varying results. See Heymann, Scaffold Law: A Defining Moment, NYLJ (June 1, 2018, p.4, col.4)

In a 2014 report written by the Construction Law Committee of the New York County Lawyers’ Association on the Scaffold Law (NYCLA Report), it was stated that: “The interpretation of the Scaffold Law is so perplexing that the former Chief Justice [sic] of the Court of Appeals characterized one of her opinions as ‘an attempt at the highly elusive goal of defining with precision the statutory terms’ of the Scaffold Law. [Joblon v.Solow, 91 NY2d 457 (1988, Kaye, CJ)] Chief Justice [sic] Kaye is not alone in her opinion of the vagaries of the Scaffold Law. Indeed, Hon. George M. Heymann, a former New York City Civil Court Justice [sic], said the Scaffold Law ‘has been and continues to be a statute that will yield differences of opinion between the courts at all levels regarding the nature of a worker’s tasks that fall within the statute ….’ [Hon. George M. Heymann, New York’s Scaffold Law and the Evolution of Elevation, New York State Bar Association Journal, Jan. 2013, at 20].” NYCLA Report at 16.

NYCLA’s extensive study on this subject concluded that New York state was an outlier among the remaining 49 states in the country by not adopting a defense of comparative negligence statute which would, in its opinion, provide “principles of equity and fairness …  to the adjudication of Scaffold Law claims.” NYCLA Report at 29.

In the intervening six years since the Report was published, the Legislature has not made any changes to the statute in this regard. This article takes no position in this debate, as its focus is to highlight two recent appellate cases, under the existing statute, where the injured plaintiffs were denied summary judgment for liability against the defendants as a direct result of their own conduct.

The ‘Scaffold Law’: Labor Law §240(1)

The first paragraph of §240(1) of the Labor Law contains two distinct criteria, each of which comes into play when an injured worker seeks recovery under this statute. In relevant part, Labor Law §240(1) reads as follows:

All contractors and owners and their agents, … [1] in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [2] shall furnish or erect, or cause to be furnished or erected for the purpose of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (Numbers in [ ] added)

The first part of this provision sets forth and limits the specific type of job that a worker must be doing at the time of his or her injury. The second part pertains to the various devices necessary to protect the worker from injury while in the performance of his or her duties. The list is not exhaustive as the language includes “other [safety] devices” to provide “proper protection”. It is this second component that establishes the strict liability upon the contractors and their agents and their responsibility is non-delegable.

Currently, only two defenses to this statute exist: (1) that the injured worker was “recalcitrant” in refusing to obey the instructions by his superiors regarding his or her use of the safety equipment provided or (2) the worker acted negligently in his or her performance of the assigned task. It should be noted, however, that such defenses would fail if the safety equipment provided was inadequate to protect the worker or the worker was not made aware of its availability, regardless of the worker’s conduct.

Seminal Cases

Among the cases pertaining to this issue, there are three decisions that predominate: Blake v. Housing Services of NYC, 1 N.Y.3d 280 (2003); Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35 (2004); and Gallagher v. New York Post, 14 N.Y.3d 83 (2010).

Blake provides an historical background as to the development of the strict/absolute liability of contractors. It points out (as does the NYCLA Report) that the “statutory language never explicitly barred contributory negligence as a defense. However, the Court of Appeals, in 1948, determined that “to meet [the statute’s] objective” the defense of contributory negligence would no longer “exonerate a defendant who has violated the statute and proximately caused a plaintiff’s injury.” See Koenig v. Patrick Construction, 298 N.Y. 313 (1948); Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985); Stolt v. General Foods, 81 N.Y.2d 918 (1993).

Blake notes that “[t]he point of Labor Law §240(1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so” (emphasis added). Originally imposing an “absolute” duty on contractors, the term “strict liability” was first pronounced in 1990 and the two terms have been used “interchangeably” since. See Cannon v. Putnam, 76 N.Y.2d 644 (1996).

Hence, if all the evidence conclusively demonstrates that the contractors provided proper safety equipment in all foreseeable circumstances and gave proper, unambiguous instructions as to its use regarding the nature of the work to be performed, then it may be justified to conclude that a plaintiff’s injuries were solely the result of his or her choice to disobey instructions [recalcitrant] or to act in a negligent manner. As will be discussed below, workers often look for short-cuts to accomplish their job, which, in time, become the conventional custom and practice. Such conduct, unless directly or tacitly approved by a superior, would absolve the contractor of liability, but only if proper safety equipment was available to the worker and he was apprised of its availability.

In Blake, the plaintiff used his own ladder, which was designed to give him proper protection, but failed to lock the extension clips when he fell. As the plaintiff could not prove that the defendant violated the statute by failing to provide mandated safety protections, the “jury implicitly found the fault was entirely plaintiff’s.”

The Blake court stated that the facts before it were similar to those in Weininger v. Hagedorn, 91 N.Y.2d 958 (1998) where a “reasonable jury” could conclude that a plaintiff’s actions were the “sole proximate cause” of his injuries, that liability under Labor Law §240(1) did not attach and its findings should not be disturbed. “Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.”

In Cahill, the holding of Blake was reiterated and reinforced where the plaintiff chose not to use a safety line provided by the defendant contractor and was determined to be “recalcitrant”, even where there was a lapse of time between when the instructions to use the equipment were given and the “disobedience” occurred. As the court held, citing Blake, “[e]ven when a worker is not ‘recalcitrant’ there can be no liability under section 240(1) when there is no violation and the worker’s actions (here, his negligence) are the ‘sole proximate cause’ of the accident.”

Gallagher, however, reached a contrary result. Here, the plaintiff, an ironworker, was on the second floor of a building removing a section of metal decking in preparation for the installment of a new floor. He was using a two-handled power saw to enlarge a hole previously made by other workers when the blade jammed, thrusting him through the hole onto a temporary floor between the first and second levels sustaining injuries. He commenced an action under Labor Law §240(1) and moved for summary judgment on liability. At issue here was whether a “standing order” by the project manager to the project foreman that ironworkers should “have a harness on and be tied off” was conveyed to the workers. The Supreme Court initially denied the motion stating there were issues of fact as to whether the defendant provided adequate safety devices and whether or not plaintiff used them. Upon reargument, the court determined that there were no issues of fact but still denied the motion on the basis that a prior injury to plaintiff’s hand may have impaired his ability to properly use the saw, thus becoming the sole proximate cause of his injuries. The Appellate Division affirmed, based on the trial court’s initial determination that there were questions of fact as to whether the defendant provided adequate protections for the plaintiff’s safety and he failed to utilize them. Two justices dissented.

The Court of Appeals reversed. Here, in contrast to Blake and Cahill, there was no evidence in the record that Gallagher knew where to find the safety devices that the defendant argued were readily available or that he was expected to use them. Therefore, the evidence did not raise a question of fact that Gallagher knew of the availability of the safety devices and unreasonably chose not to use them. The court further held that plaintiff’s weakened grip on the saw from his prior injury would “at most have contributed towards his loss of balance, and could not as a matter of law have been the sole proximate cause of his fall.”

Recent Appellate Cases

Tukshaitov v. Young Mens’ & Young Womens’ Hebrew Assn. (YMWHA), 2020 NY Slip Op 01380 (2d Dept.) and Biaca-Neto v. Boston Rd II Hous. Dev. Fund, 176 A.D.3d 1 (1st Dept. 2019) aff’d as modified, 2020 NY Slip Op 01116, both address the issue of whether the actions of the two plaintiffs were the sole proximate cause of their injuries.  In Tukshaitov, the Appellate Division unanimously affirmed the trial court’s determination that the plaintiff was the sole proximate cause of his accident. In Biaca-Neto, on the other hand, both the Appellate Division and the Court of Appeals were sharply divided in their decisions (3-2 and 4-3, respectively). The Court of Appeals ultimately concluded that there were issues of fact for a jury to decide and, thus, modified the Appellate Division’s affirmance of the Supreme Court’s dismissal of the action.

Tukshaitov was employed by an elevator company as a mechanical assistant and on the day of his accident was assigned to work on a modernization project in a building owned by the defendant, YMWHA. To get to the elevator machine room plaintiff and his co-workers took an elevator to the penthouse floor and then ascended a “special staircase” to access the machine room. They then removed a controller and generator from one elevator and, using the hoists they brought with them, lowered the equipment to the penthouse floor where they were then taken down to the ground floor on a different elevator. The machine room shaft, which connects to the penthouse, is a two-level rectangular opening which is opened by removing two metal sheets with attached metal handles. Once opened, the sheets must be set aside as there are no hinges to connect the doors to the shaft. The lower portion of the shaft is then accessible through a panel which is opened by sliding pistons to unlock it and then lowered by a rope where the panel remains attached to the shaft by hinges.

After the plaintiff assisted in loading the equipment into his company’s van he returned with his supervisor and two others to the machine room to close up the shaft. One of the workers pulled the rope to close the hinged lower shaft access panel, and then the plaintiff hammered in the sliding piston locks to secure it. The plaintiff and his coworkers went on to perform different tasks, leaving the upper portion of the shaft open, with the metal doors still to be closed and secured. Thereafter, the plaintiff, without instruction or supervision, unilaterally decided to close the metal shaft doors by himself, by stepping into the shaft, standing on the hinged access panel, and pulling the first of the two doors into place. When the plaintiff started pulling the metal door toward him, the access panel swung open, and the plaintiff fell approximately 10 to 14 feet to the floor below, suffering injury.

The Appellate Division agreed with the Supreme Court’s determination granting summary judgment dismissing the complaints as asserted against the defendants YMWHA and the contractor. With respect to the causes of action alleging violations of Labor Law §§240(1), the defendants submitted, inter alia, the plaintiff’s deposition testimony demonstrating, prima facie, that “it was the plaintiff’s decision to climb into the shaft and stand on the access panel in an attempt to close the doors, while knowing that it was [his employer’s] procedure to stand on the floor of the machine room with another coworker, and close the doors from above. He also knew that his supervisor would not have approved of him standing on the access panel. The defendants established, as a matter of law, that the plaintiff’s actions were the sole proximate cause of his injuries (see Montgomery v Federal Express Corp., 4 NY3d 805 [2005]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; but cf. Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904 [2011]). In opposition, the plaintiff failed to raise a triable issue of fact” (emphasis added).

The issue in Biaca-Neto is set forth in the opening paragraph of the Appellate Division’s majority opinion: “The main focus of our appellate review addresses where to locate the boundaries of a defendant’s responsibilities under Labor Law §240(1) when a worker is injured upon exiting a scaffold by an impermissible means when a safe mode of exit is readily available. The record evidence amply supports the motion court’s conclusion that defendants cannot be held liable for plaintiff[’s] injuries under the Scaffold Law.”

This case brings to the fore several questions to be considered: Did the defendant employer provide adequate safety protection? Was the plaintiff aware that it was available to him? Was he given specific instructions as to the work to be performed and the use of such equipment? Did he understand his tasks and the instructions to be followed? Is his conduct excusable if he cuts corners because his fellow workers consistently do it, despite its prohibition by superiors? Finally, could plaintiff, in his failed attempt to do what his co-worker did, meet his prima facie burden on the theory of “follow the leader”?

Plaintiff was working on the assembly of an exterior scaffold with a co-worker at the time of his accident. To reach the platform on the seventh-floor level they could either use a scaffold staircase or hoists to ascend and descend. That morning plaintiff used the staircase and wore a lifeline attached to a harness to protect him from falls. There was no evidence that the scaffold was improperly constructed or that necessary safety devices were unavailable. However, to enter the interior of the building, workers were required to descend using the scaffold staircase or hoists and then use the interior staircase to reach the different levels to perform interior work. There were also window cutouts for “safety control zones” only and workers were prohibited from entering the interior of the building from the scaffold via these cutouts without permission from the safety manager. The defense asserted that they were “unaware of workers using such a shortcut and that any worker who climbed through a window would have been removed from the job site.”

On the day of the incident, the plaintiff and his co-worker, while on the scaffold, were directed to perform work on the other side of the building. Rather than descend the scaffold by the staircase or hoist to enter the building as previously instructed, the co-worker chose to push himself up through the window opening. The plaintiff, who could not reach the opening several feet above his head, unhooked his harness and while attempting to climb the scaffold, slipped, “popped” his shoulder, and fell back onto the platform of the scaffold.

Amidst the conflicting testimony and evidence at both the trial and appellate level, the Appellate Division, in a split decision, affirmed the Supreme Court’s denial of plaintiff’s motion for summary judgment and dismissal of the action.

The majority of the court determined that the plaintiff’s conduct was the sole proximate cause of his injuries. In order to save a few minutes in relocating to another part of the building, the plaintiff, following his co-worker’s lead, unhooked his safety harness and climbed on the scaffold frame to enter through the window opening, which was prohibited. “Whether or not he did so knowledgeably or was simply following another worker is not a valid basis to attribute responsibility to the defendants.”  Plaintiff acted “on his own volition” and, according to the court, his actions were not protected by Labor Law §240(1) because he could not prove any defect in the required safety devices available to him.

A vigorous dissent asserted that there were triable issues of fact, the resolution of which should be left to a jury. Other than the plaintiff, no one else witnessed his accident. At his deposition, the plaintiff testified “I decided to follow the experience of someone who was working there longer.” The testimony of others demonstrated that while the supervisors were told that workers were prohibited from entering the building through the window cut-outs, no evidence was elicited that this prohibition was ever passed along to the workers. While the plaintiff himself gave conflicting statements about the incident, it should be for a jury to reconcile the differences during their deliberations and whether to accept any version as the truth.

In a memorandum decision, the Court of Appeals, agreeing with the dissent below, modified the Appellate Division’s order by denying defendant’s motion for summary judgment and dismissal of plaintiff’s Labor Law §240(1) action. It concluded that there was a triable issue of fact as to the plaintiff’s conduct being the sole proximate cause of his injuries (i.e., whether he “unambiguously” knew that he was expected to utilize the safety equipment supplied).

Adhering to its prior holdings in Gallagher and Cahill, the court highlighted the key factors set forth in Cahill, that “a jury could have found that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.” Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40 (2004). If such factual findings would lead to the conclusion that a defendant has no liability under Labor Law §240(1), then summary judgment should not be granted in plaintiff’s favor. In this case, a triable issue of fact exists as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the apparent accepted practice of entering the building through the window cut-outs from the scaffolding. “Indeed, as the Appellate Division dissent concluded, the Appellate Division majority (and the dissent here) ‘ignore[] the evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose’ (citation omitted).”

The spirited dissent opined that the plaintiff’s conduct, as a matter of law, was the sole proximate cause of his injuries because “for no good reason” he chose not to use the adequate safety devices available to him which he was expected to use. Instead, he “chose convenience over safety” and “[i]t is equally irrelevant that plaintiff was attempting the same unsafe ‘maneuver’ as his coworker [ ]. Reckless maneuvers are still reckless no matter how many times they are performed. Plaintiff cannot defeat summary judgment by simply pointing to a coworker who made the same misguided decision to disregard the various safety devices that defendants had provided.”

Conclusion

As I noted at the outset, a great portion of cases in this area of law are anything but black and white and require a factual finding by a jury. The Biaca-Neto matter, which caused a great deal of debate among the judges in the appellate courts, is a prime example.

George M. Heymann is a retired NYC Housing Court Judge, adjunct professor of law at Maurice A. Deane School of Law at Hofstra University, certified Supreme Court mediator, and of Counsel, Finz & Finz PC.