New York's "Scaffold Law", Labor Law §240(1), is a strict(absolute) liability statute created to protect workers in thefield of construction where injuries, or, in some instances, deathoccur while performing one or more tasks that are elevationrelated.

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

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In my article, Language and the Law (NYLJ, April 7, 2020, p.6, col.4), Istated that "we [attorneys and judges] are often called upon todecipher the 'legislative intent' of a statute." This is especiallyso with respect to Labor Law §240(1). For decades, courts haveoften struggled with its application to the facts of each case,where the injured plaintiffs invariably seek summary judgment onthe issue of liability. As the body of decisional law has shown,there are generally no black and white answers to the issues inquestion leaving the attorneys and the courts to draw conclusionsby sifting through the grey matter with varying results. SeeHeymann, Scaffold Law: A Defining Moment, NYLJ (June 1, 2018, p.4,col.4)

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In a 2014 report written by the Construction Law Committee ofthe New York County Lawyers' Association on the Scaffold Law (NYCLAReport), it was stated that: "The interpretation of the ScaffoldLaw is so perplexing that the former Chief Justice [sic]of the Court of Appeals characterized one of her opinions as 'anattempt at the highly elusive goal of defining with precision thestatutory terms' of the Scaffold Law. [Joblon v.Solow, 91NY2d 457 (1988, Kaye, CJ)] Chief Justice [sic] Kaye is notalone 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 bea statute that will yield differences of opinion between the courtsat all levels regarding the nature of a worker's tasks that fallwithin the statute ….' [Hon. George M. Heymann, New York'sScaffold Law and the Evolution of Elevation, New York StateBar Association Journal, Jan. 2013, at 20]." NYCLA Report at16.

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NYCLA's extensive study on this subject concluded that New Yorkstate was an outlier among the remaining 49 states in the countryby not adopting a defense of comparative negligence statute whichwould, in its opinion, provide "principles of equity and fairness…  to the adjudication of Scaffold Law claims." NYCLAReport at 29.

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

The 'Scaffold Law': Labor Law §240(1)

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

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

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The first part of this provision sets forth and limits thespecific type of job that a worker must be doing at the time of hisor her injury. The second part pertains to the various devicesnecessary to protect the worker from injury while in theperformance of his or her duties. The list is not exhaustive as thelanguage includes "other [safety] devices" to provide "properprotection". It is this second component that establishes thestrict liability upon the contractors and their agents and theirresponsibility is non-delegable.

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Currently, only two defenses to this statute exist: (1) that theinjured worker was "recalcitrant" in refusing to obey theinstructions by his superiors regarding his or her use of thesafety equipment provided or (2) the worker acted negligently inhis or her performance of the assigned task. It should be noted,however, that such defenses would fail if the safety equipmentprovided was inadequate to protect the worker or the worker was notmade aware of its availability, regardless of the worker'sconduct.

Seminal Cases

Among the cases pertaining to this issue, there are threedecisions that predominate: Blake v. Housing Services ofNYC, 1 N.Y.3d 280 (2003); Cahill v. Triborough Bridge andTunnel Authority, 4 N.Y.3d 35 (2004); and Gallagher v. NewYork Post, 14 N.Y.3d 83 (2010).

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Blake provides an historical background as to thedevelopment of the strict/absolute liability of contractors. Itpoints out (as does the NYCLA Report) that the "statutory languagenever 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 negligencewould no longer "exonerate a defendant who has violated the statuteand 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).

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Blake notes that "[t]he point of Labor Law §240(1) isto compel contractors and owners to comply with the law, not topenalize 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 termshave been used "interchangeably" since. See Cannon v.Putnam, 76 N.Y.2d 644 (1996).

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Hence, if all the evidence conclusively demonstrates that thecontractors provided proper safety equipment in all foreseeablecircumstances and gave proper, unambiguous instructions as to itsuse regarding the nature of the work to be performed, then it maybe justified to conclude that a plaintiff's injuries were solelythe result of his or her choice to disobey instructions[recalcitrant] or to act in a negligent manner. As will bediscussed below, workers often look for short-cuts to accomplishtheir job, which, in time, become the conventional custom andpractice. Such conduct, unless directly or tacitly approved by asuperior, would absolve the contractor of liability, but onlyif proper safety equipment was available to the worker and hewas apprised of its availability.

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In Blake, the plaintiff used his own ladder, which wasdesigned to give him proper protection, but failed to lock theextension clips when he fell. As the plaintiff could not prove thatthe defendant violated the statute by failing to provide mandatedsafety protections, the "jury implicitly found the fault wasentirely plaintiff's."

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The Blake court stated that the facts before it weresimilar to those in Weininger v. Hagedorn, 91 N.Y.2d 958(1998) where a "reasonable jury" could conclude that a plaintiff'sactions were the "sole proximate cause" of his injuries, thatliability under Labor Law §240(1) did not attach and its findingsshould not be disturbed. "Thus, if a statutory violationis a proximate cause of an injury, the plaintiff cannot be solelyto blame for it. Conversely, if the plaintiff is solely to blamefor the injury, it necessarily means that there has been nostatutory violation."

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In Cahill, the holding of Blake was reiteratedand reinforced where the plaintiff chose not to use a safety lineprovided by the defendant contractor and was determined to be"recalcitrant", even where there was a lapse of time between whenthe 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 noliability under section 240(1) when there is no violation and theworker's actions (here, his negligence) are the 'sole proximatecause' of the accident."

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Gallagher, however, reached a contrary result. Here,the plaintiff, an ironworker, was on the second floor of a buildingremoving a section of metal decking in preparation for theinstallment of a new floor. He was using a two-handled power saw toenlarge a hole previously made by other workers when the bladejammed, thrusting him through the hole onto a temporary floorbetween the first and second levels sustaining injuries. Hecommenced an action under Labor Law §240(1) and moved for summaryjudgment on liability. At issue here was whether a "standing order"by the project manager to the project foreman that ironworkersshould "have a harness on and be tied off" was conveyed to theworkers. The Supreme Court initially denied the motion statingthere were issues of fact as to whether the defendant providedadequate safety devices and whether or not plaintiff used them.Upon reargument, the court determined that there were no issues offact but still denied the motion on the basis that a prior injuryto plaintiff's hand may have impaired his ability to properly usethe saw, thus becoming the sole proximate cause of his injuries.The Appellate Division affirmed, based on the trial court's initialdetermination that there were questions of fact as to whether thedefendant provided adequate protections for the plaintiff's safetyand he failed to utilize them. Two justices dissented.

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The Court of Appeals reversed. Here, in contrast toBlake and Cahill, there was no evidence in therecord that Gallagher knew where to find the safety devices thatthe defendant argued were readily available or that he was expectedto use them. Therefore, the evidence did not raise a question offact that Gallagher knew of the availability of the safety devicesand unreasonably chose not to use them. The court further held thatplaintiff's weakened grip on the saw from his prior injury would"at most have contributed towards his loss of balance, and couldnot as a matter of law have been the sole proximate cause of hisfall."

Recent Appellate Cases

Tukshaitov v. Young Mens' & Young Womens' HebrewAssn. (YMWHA), 2020 NY Slip Op 01380 (2d Dept.) andBiaca-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, bothaddress the issue of whether the actions of the two plaintiffs werethe sole proximate cause of their injuries.  InTukshaitov, the Appellate Division unanimously affirmedthe trial court's determination that the plaintiff was the soleproximate cause of his accident. In Biaca-Neto, on theother hand, both the Appellate Division and the Court of Appealswere sharply divided in their decisions (3-2 and 4-3,respectively). The Court of Appeals ultimately concluded that therewere issues of fact for a jury to decide and, thus, modified theAppellate Division's affirmance of the Supreme Court's dismissal ofthe action.

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Tukshaitov was employed by an elevator company as a mechanicalassistant and on the day of his accident was assigned to work on amodernization project in a building owned by the defendant, YMWHA.To get to the elevator machine room plaintiff and his co-workerstook an elevator to the penthouse floor and then ascended a"special staircase" to access the machine room. They then removed acontroller and generator from one elevator and, using the hoiststhey brought with them, lowered the equipment to the penthousefloor where they were then taken down to the ground floor on adifferent elevator. The machine room shaft, which connects to thepenthouse, is a two-level rectangular opening which is opened byremoving two metal sheets with attached metal handles. Once opened,the sheets must be set aside as there are no hinges to connect thedoors to the shaft. The lower portion of the shaft is thenaccessible through a panel which is opened by sliding pistons tounlock it and then lowered by a rope where the panel remainsattached to the shaft by hinges.

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After the plaintiff assisted in loading the equipment into hiscompany's van he returned with his supervisor and two others to themachine room to close up the shaft. One of the workers pulled therope to close the hinged lower shaft access panel, and then theplaintiff hammered in the sliding piston locks to secure it. Theplaintiff and his coworkers went on to perform different tasks,leaving the upper portion of the shaft open, with the metal doorsstill to be closed and secured. Thereafter, the plaintiff, withoutinstruction or supervision, unilaterally decided to close the metalshaft doors by himself, by stepping into the shaft, standing on thehinged access panel, and pulling the first of the two doors intoplace. When the plaintiff started pulling the metal door towardhim, the access panel swung open, and the plaintiff fellapproximately 10 to 14 feet to the floor below, sufferinginjury.

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The Appellate Division agreed with the Supreme Court'sdetermination granting summary judgment dismissing the complaintsas asserted against the defendants YMWHA and the contractor. Withrespect to the causes of action alleging violations of Labor Law§§240(1), the defendants submitted, inter alia, the plaintiff'sdeposition testimony demonstrating, prima facie, that "it was theplaintiff's decision to climb into the shaft and stand on theaccess panel in an attempt to close the doors, while knowing thatit was [his employer's] procedure to stand on the floor of themachine room with another coworker, and close the doors from above.He also knew that his supervisor would not have approved of himstanding on the access panel. The defendants established, as amatter of law, that the plaintiff's actions were the sole proximatecause of his injuries (seeMontgomery v Federal Express Corp., 4 NY3d805 [2005]; Cahillv Triborough Bridge & Tunnel Auth., 4 NY3d35 [2004]; Blakev Neighborhood Hous. Servs. of N.Y. City, 1 NY3d280 [2003]; but cf. Cordeirov TS Midtown Holdings, LLC, 87 AD3d 904 [2011]).In opposition, the plaintiff failed to raise a triable issue offact" (emphasis added).

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The issue in Biaca-Neto is set forth in the openingparagraph of the Appellate Division's majority opinion: "The mainfocus of our appellate review addresses where to locate theboundaries of a defendant's responsibilities under Labor Law§240(1) when a worker is injured upon exiting a scaffold by animpermissible means when a safe mode of exit is readily available.The record evidence amply supports the motion court's conclusionthat defendants cannot be held liable for plaintiff['s] injuriesunder the Scaffold Law."

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This case brings to the fore several questions to be considered:Did the defendant employer provide adequate safety protection? Wasthe plaintiff aware that it was available to him? Was he givenspecific instructions as to the work to be performed and the use ofsuch equipment? Did he understand his tasks and the instructions tobe followed? Is his conduct excusable if he cuts corners becausehis fellow workers consistently do it, despite its prohibition bysuperiors? Finally, could plaintiff, in his failed attempt to dowhat his co-worker did, meet his prima facie burden on the theoryof "follow the leader"?

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Plaintiff was working on the assembly of an exterior scaffoldwith a co-worker at the time of his accident. To reach the platformon the seventh-floor level they could either use a scaffoldstaircase or hoists to ascend and descend. That morning plaintiffused the staircase and wore a lifeline attached to a harness toprotect him from falls. There was no evidence that the scaffold wasimproperly constructed or that necessary safety devices wereunavailable. However, to enter the interior of the building,workers were required to descend using the scaffold staircase orhoists and then use the interior staircase to reach the differentlevels to perform interior work. There were also window cutouts for"safety control zones" only and workers were prohibited fromentering the interior of the building from the scaffold via thesecutouts without permission from the safety manager. The defenseasserted that they were "unaware of workers using such a shortcutand that any worker who climbed through a window would have beenremoved from the job site."

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On the day of the incident, the plaintiff and his co-worker,while on the scaffold, were directed to perform work on the otherside of the building. Rather than descend the scaffold by thestaircase 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 abovehis head, unhooked his harness and while attempting to climb thescaffold, slipped, "popped" his shoulder, and fell back onto theplatform of the scaffold.

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

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The majority of the court determined that the plaintiff'sconduct was the sole proximate cause of his injuries. In order tosave a few minutes in relocating to another part of the building,the plaintiff, following his co-worker's lead, unhooked his safetyharness and climbed on the scaffold frame to enter through thewindow opening, which was prohibited. "Whether or not he did soknowledgeably or was simply following another worker is not a validbasis 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 hecould not prove any defect in the required safety devices availableto him.

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A vigorous dissent asserted that there were triable issues offact, the resolution of which should be left to a jury. Other thanthe plaintiff, no one else witnessed his accident. At hisdeposition, the plaintiff testified "I decided to follow theexperience of someone who was working there longer." The testimonyof others demonstrated that while the supervisors were told thatworkers were prohibited from entering the building through thewindow cut-outs, no evidence was elicited that this prohibition wasever passed along to the workers. While the plaintiff himself gaveconflicting statements about the incident, it should be for a juryto reconcile the differences during their deliberations and whetherto accept any version as the truth.

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In a memorandum decision, the Court of Appeals, agreeing withthe dissent below, modified the Appellate Division's order bydenying defendant's motion for summary judgment and dismissal ofplaintiff's Labor Law §240(1) action. It concluded that there was atriable issue of fact as to the plaintiff's conduct being the soleproximate cause of his injuries (i.e., whether he "unambiguously"knew that he was expected to utilize the safety equipmentsupplied).

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Adhering to its prior holdings in Gallagher andCahill, the court highlighted the key factors set forth inCahill, that "a jury could have found that plaintiff hadadequate safety devices available; that he knew both that they wereavailable and that he was expected to use them; that he chose forno good reason not to do so; and that had he not made that choicehe would not have been injured." Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d35, 40 (2004). If such factual findings would lead to theconclusion that a defendant has no liability under Labor Law§240(1), then summary judgment should not be granted in plaintiff'sfavor. In this case, a triable issue of fact exists as towhether plaintiff knew he was expected to use the safetydevices provided to him, despite the apparent accepted practice ofentering the building through the window cut-outs from thescaffolding. "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 thescaffold to go through window cut-outs to enter the interior of thebuilding and that the scaffold was clearly inadequate for thatpurpose' (citation omitted)."

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The spirited dissent opined that the plaintiff's conduct, as amatter of law, was the sole proximate cause of his injuries because"for no good reason" he chose not to use the adequate safetydevices available to him which he was expected to use. Instead, he"chose convenience over safety" and "[i]t is equally irrelevantthat plaintiff was attempting the same unsafe 'maneuver' as hiscoworker [ ]. Reckless maneuvers are still reckless no matter howmany times they are performed. Plaintiff cannot defeat summaryjudgment by simply pointing to a coworker who made the samemisguided decision to disregard the various safety devices thatdefendants had provided."

Conclusion

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

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George M. Heymann is a retired NYCHousing Court Judge, adjunct professor of law at Maurice A. DeaneSchool of Law at Hofstra University, certified Supreme Courtmediator, and of Counsel, Finz & Finz PC.

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