Judicial Erosion of the Labor Law

Judicial Erosion of Labor Law§240(1)

                                            By: Robert S. Kelner and Gail S. Kelner

     In a disturbing article  published in the New York Times on November 22, 2006, it was reported that fatal construction accidents in New York City rose 61% for the year ending September 30, 2006. Falls from hanging scaffolds were the single greatest factor in the increase.  Many of the 29 reported victims were Hispanic immigrants working in nonunion jobs for small contractors. On November 1, 2006, a 25 year old Ecuadorian immigrant fell to his death outside an office near Union Square. His harness was not attached to his lifeline and his employer had not obtained proper permits or provided adequate training or monitoring. The article stated that the number of hanging scaffold accidents has surged over prior years.1

      On December 27, 2006, the New York Times reported the collapse of a roof,  killing one worker and injuring two others. The article states:

“ Mr. Joseph’s death follows a year in which there was a sharp increase in fatal accidents among construction workers in New York. Twenty-nine construction workers died in workplace accidents during the year that ended on Sept. 30, compared with 18 during the previous year.”2

 

       The increase in the number of deaths and injuries should provoke an intense review by government, industry and the judiciary.   In Koenig v. Patrick Constr. Co., 298 N.Y. 313(1948), our Court of Appeals long ago wisely observed:

 “[W]orkmen...who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large.”

 

          Labor Law §240(1) was enacted with the express legislative intent to place responsibility for safety at the work place on the owners, general contractors and their agents, rather than the workers. Historically, in  major landmark decisions, which we will discuss, our Court of Appeals affirmed the absolute liability of these parties where they failed to adhere to its safety mandates.3 Any comparative negligence of the worker was not a defense.

       Labor Law§240(1) was a formidable tool to promote worker safety. It was a protective and progressive judicial force for many years. The courts and the legislature recognized that workers could not protect themselves. The pressure to please employers and maintain  a job necessary to support a family might cause a worker to complete his or her  work too quickly and  without adequate attention to safety.  A worker’s  actions might be the result of  inadequate training. As such, it was determined that responsibility for safety at the work place should be placed squarely  upon owners in financial control and contractors with supervisory authority.

      Sadly, recent decisions  have substantially eroded the  principles for which the earlier courts were a strong voice.  The newer judicial interpretations of  Labor Law §240(1) have  economically benefitted   contractors and insurance companies, to the detriment of work place safety.

           Labor Law § 240(1) provides, in pertinent part:

“ All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance 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.”

 

      In construing the statute, the Court of Appeals  rendered  judicial interpretations which gave effect to the express legislative intent   that the owner, general contractors and their agents must “furnish and  erect” safety devices which are “constructed, placed and operated as to give proper  protection.” 

    In  Zimmer v. Chemung County Performing Arts, Inc.  65 N.Y.2d 513, 493 N.Y.S.2d 102 (1985), in imposing absolute liability,  the Court of Appeals expressly acknowledged  the legislative intent:

“We begin our analysis by again observing that the legislative history of the Labor Law, particularly sections 240 and 241, makes clear the Legislature's intent to   achieve the purpose of protecting workers by placing “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’...”

 

       In subsequent decisions, the Court of Appeals consistently held that Labor Law § 240(1) should  be construed as liberally as may be necessary  for the accomplishment of the purpose for which it was enacted.4 This philosophy  is not evident in recent decisions.

       In  Haimes v. New York Telephone Company, 46 N.Y.2d 132, 412 N.Y.S.2d 863 (1978), defendant was held liable under §240(1) for the death of a self-employed painter,  whose ladder toppled over. The court minced no words in commenting that §240(1) was specifically enacted by the legislature  to  fix the ultimate responsibility for safety practices on the owner and general contractor, where it actually belonged.

       In Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880 (1985), plaintiff  fell through a fourth story window when the ladder upon which he was standing, and which he himself had improperly positioned, suddenly collapsed beneath him.  The Court of Appeals  held that comparative negligence was not a defense to the imposition of absolute liability, stating:

“[R]egardless of any carelessness on plaintiff’s part which might also have contributed to his fall, defendants were properly held absolutely liable for the full extent of the damages proximately resulting from the improper placement of the ladder.”

 

         The courts in the past  consistently held that defendants could not escape the imposition of absolute liability merely by demonstrating that safety devices were present somewhere at the work site. Zimmer v. Chemung County Performing Arts, supra., Neville v. Deters, 175 A.D.2d 597,  572 N.Y.S.2d 256( 4th Dept.,1991).             Unfortunately,  recent judicial trends have heaped increasing blame upon  the hapless worker and conferred more frequent absolution from liability to those traditionally responsible for workplace safety. Comparative negligence which was never a defense to liability under Labor Law§240(1) has been increasingly  supplanted by a  “sole proximate cause” defense, a complete bar to recovery which has become the insurance company’s best friend. This is based upon a finding that the accident was entirely a result of the worker’s actions.  “Recalcitrant worker” has been expanded into far more than a proven wilful refusal to utilize properly placed and erected safety equipment. The historic obligation of owners and general contractors to not only provide   but to also place and erect the necessary safety equipment to protect the worker has been minimized.  Solely as a result of judicial action, and in the complete absence of any legislative modification, the eroded  statute no longer has either the deterrent or  remedial effect which was originally  intended.

        It is almost impossible to reconcile the absolute liability principles  espoused in the earlier cases with recent decisions such as Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840, (1998); Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d 484(2003)  and  Robinson v. East Medical Center, LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589 (2006). These decisions show an increased emphasis on  sole proximate cause. In Blake,  the Court of Appeals did offer a  glimmer of hope for the future in holding that if a violation of   Labor Law §240(1) is a proximate cause of the accident, then nothing that plaintiff does can be the sole proximate cause. However, the absence of  judicial insistence in many current cases that the statutory defendants not only furnish but properly  place and erect all necessary safety equipment is certainly an impediment to establishing a violation.

     In Robinson v. East Medical Center, LP, supra., the Court of Appeals  held that a subcontractor’s worker was negligent  in choosing to use a six-foot stepladder which  he knew was too short to install a pipe hanger system on overhead structural beams. The court held that the worker’s actions were the sole proximate cause of injuries he sustained when the ladder tipped while he was standing on the top. It stated  that the worker not only knew that he needed an eight-foot ladder to perform the work but also knew where such ladders were located at the job site. Instead, he chose to use the shorter ladder without looking for the taller one beyond his immediate work location. This decision is a stark departure from prior law and the plain language of §240(1). Not only were defendants in blatant violation of the statute for failing to provide safety devices “constructed, placed and operated as to give proper protection,” but the injured worker was then blamed completely for the accident. The mere fact that an eight foot ladder might be somewhere at the site, which was insufficient to satisfy the statute  under the older cases  was sufficient for the Robinson court, which stated:

“Where a "plaintiff's actions [are] the sole proximate cause of his injuries, ... liability under Labor Law § 240(1) [does] not attach" Instead, the owner or contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them.


       Essentially, the court called the worker’s comparative negligence the “sole proximate cause” of the incident. Ignored were the statutory requirements regarding the placing and erecting of proper safety devices.

     In Montgomery v. Federal Express Corp.4 N.Y.3d 805, 795 N.Y.S.2d  490 (2005), the workers used a bucket to ascend to an elevated motor room from which the access stairs had been removed.  There was no ladder in the immediate vicinity, although ladders may have been generally available at the job site. When leaving, plaintiff was compelled to jump and sustained injury. Disregarding the statutory  obligation to place and erect safety devices to bridge the elevation differential, the court penalized the worker, holding:

“We agree with the Appellate Division that, since ladders were readily available, plaintiff's “normal and logical response” should have been to go get one. Plaintiff's choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240(1).”

 

          The current Court of Appeals has  vastly expanded  the  concept of “sole proximate cause.” In addition, to the further detriment of workers, the “recalcitrant worker” defense has been extended far beyond its original restricted scope of  a proven wilful  refusal to use safety equipment which has been provided, and properly erected.

          In Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993), the Court of Appeals held that any culpability of the injured party would not reduce  the owner’s or contractor's liability under Labor Law §240(1) for failing to provide adequate safety devices.    The court  rejected defendant’s argument that plaintiff was a recalcitrant worker in failing to obey a mere instruction to use safety equipment:

“Finally, the so-called “recalcitrant worker” defense cannot be invoked in these circumstances...That defense... requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer... It has no application where, as here, no adequate safety devices were provided.  We note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a “safety device.”

 

     Again, in Gordon v. Eastern Ry. Supply, Inc. 82 N.Y.2d 555,  606 N.Y.S.2d 127 1993), the court held:

“Defendants' claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, 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 such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”5
These landmark  holdings are totally inconsistent with the recent  Cahill  v.

 Triborough Bridge and Tunnel Authority 4 N.Y.3d 35,790 N.Y.S.2d 74 (2004) where the Court of Appeals held that a worker was recalcitrant for disobeying an instruction given over a month earlier:

“The word "recalcitrant" fits plaintiff in this case well. He received specific instructions to use a safety line while climbing, and chose to disregard those instructions. He was not the less recalcitrant because there was a lapse of weeks between the instructions and his disobedience of them.”

   

             It is lamentable that it is apparently  more cost effective to lose a few anonymous workers who will never have obituaries in the New York Times  than to ensure a safe workplace. The need for sanctions and stringent enforcement of workplace safety rules has never been more urgent. Sadly, the judicial erosion of the Labor Law and the increase in construction accidents are occurring at the same time. Enforcement of a strong and absolute labor law as construed under the traditional landmark decisions of the past  is an effective tool in an arsenal which should be designed to stem the tide of worker death and injury. Those in control of the workplace should not be allowed to operate “on the cheap” in the State of New York.                              

 


1.Chan, Sewell,”Fatal Construction Accidents in City Rise Sharply, ”New York Times, 11/22/06, p. B1

2.Feuer, Alan,“Roof Collapses, Killing a Worker and Injuring Two,”New York Times, 12/27/06, p. B1

3.  Zimmer v. Chemung County Performing Arts, Inc.  65 N.Y.2d 513, 493 N.Y.S.2d 102 (1985);  Haimes v. New York Telephone Company, 46 N.Y.2d 132, 412 N.Y.S.2d 863 (1978); Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880 (1985)

4. Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127,  Panek v. County of Albany, 99 N.Y.2d 452, 758 N.Y.S.2d 267.

5.See also Hagins v. State ,81 N.Y.2d 921, 597 N.Y.S.2d 651(1993) where the court held that  allegations that claimant had repeatedly been told not to walk across the abutment from which he fell were insufficient to create a triable issue of fact under the "recalcitrant worker" doctrine  since that defense was limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner