Significant Court of Appeals Construction Law Decision

Runner v. New York Stock Exchange: Labor Law §240(1) Reexamined

By: Robert S. Kelner and Gail S. Kelner

            Labor Law §240(1) protects workers exposed to the hazards of elevation related differentials  which require the types of safety devices called for in the statute. The worker must be performing a task enumerated in the statute when he or she is exposed to such risks. The statute provides in pertinent part:

Section 240(l). All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing ... of a building or structure shall furnish or erect or cause to be furnished and erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangars, 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.    

           

      The courts have generally determined that the statute  is applicable where a worker falls because of the failure to provide the protection mandated by the statute or when the worker is injured because of an object which falls as a result of a statutory violation. In Rocovich v. Consolidated Edison,78 N.Y.2d 509, 577N.Y.S.2d 219 (1991), the Court of Appeals previously  stated:

The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of materials or load being hoisted or secured.

 

            However, in its very recent decision in Runner v. New York Stock Exchange, _N.Y.3d_, 2009 WL 4840213,  the Court of Appeals construed the scope of the statute more expansively in resolving a question referred to it by the Second Circuit Court of Appeals. It was asked to determine whether liability could be imposed under Labor Law§240(1)  where a worker neither fell from a height nor was physically struck by a falling object. Plaintiff had been injured while attempting to restrain an object from being lowered too quickly. He was stationed at a level above the object. He neither fell nor was  struck by the object. The Court of Appeals, as will be hereinafter discussed, held that §240(1) was applicable under the circumstances, thereby extending the reach of this statute.

            Previously, in  Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001) in analyzing statutory liability for injuries related to falling objects, the Court of Appeals  held  that a worker must show that the object fell while being hoisted or secured. However,  later decisions made it clear that the scope of §240(1) was less restricted than the court had  expressed in Narducci.  In Outar v. City of New York, 5 N.Y.3d 731,799 N.Y.S.2d 770 (2005), and subsequently in Quattrocchi v. F.J. Sciame Construction Co., 11 N.Y.3d 757, 866 N.Y.S.2d 592 (2008), the court  held that  liability was not limited  to objects which fall while in the actual process of being secured or hoisted. Rather, it includes objects that required securing for the purposes of the work being undertaken.  These decisions all involved workers being struck by falling objects.

            In  Runner v. New York Stock Exchange, the court expanded the scope of  analysis beyond the rigid parameters imposed by these earlier decisions. Judge Lippman, writing for the court in this unanimous decision specifically noted: “ The breadth of the statute’s protection has, however, been construed to be less wide than its text would indicate.”  

            The  Court in Runner rejected  a  narrow reading of the statute, dependent solely upon whether a worker fell or was struck by a falling object. The court explicitly stated that the applicability of §240(1) in falling object cases did not necessarily depend upon whether the object hit the worker. The  decisive issue, it held, is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. The relevant question is whether harm flowed directly from the application of the force of gravity to the object. The Court held that this question may be answered in the affirmative even where the object does not strike the worker.             

Although the factual predicate in Runner may have been a case of first impression for the Court of Appeals, lower courts have addressed this issue.  For example, in Sasso v. NyMed Inc. 238 A.D.2d 799, 656 N.Y.S.2d 509 (3^rd Dept. 1997), plaintiff was standing upon a scaffold installing sheetrock. When a piece of this material started to fall, he  tried to prevent it from careening to the ground below.   As he reached out to grab the sheet, he was injured when he  was  pulled into and partially over the railing of the scaffold. The court held that the accident was within the scope of §240(1).  The fact that plaintiff neither fell nor was struck by the sheetrock was not dispositive. The injury was a foreseeable consequence of defendants’ failure to provide and place the necessary safety devices mandated by the statute under the circumstances. The court stated:

The fact that plaintiff did not himself fall is not dispositive, for while the scaffold shielded him from the risk posed by the location of his worksite some six feet above the ground, it did not protect him from the distinctly separate, elevation-related hazard created by the need to suspend a 50-pound piece of sheetrock above his head... Nor is it significant that the falling object itself did not strike or crush him; it is enough that his injury was a foreseeable consequence of defendants' failure to provide and place a proper protective device where one was called for.

 

       In Kollbeck v. 417 FS Realty LLC,4 A.D.3d 314, 772 N.Y.S.2d 688 (2nd Dept. 2004), plaintiff and  his co-workers were moving a mechanical chain  hoist that was suspended from a steel I-beam directly over a 12-story stairwell. No safety device had been  provided for the removal of the object which, with the chain attached, was  too heavy for one worker to lift. Plaintiff draped the chain over a railing at the top of the stairwell and gradually lowered the object. When the chain began to slip through his hands, he tightened his grip. He was able to stop the fall, but he injured his back.  The court held that a finder of fact might apply  Labor Law §240(1) because the injury was a foreseeable consequence of defendant’s failure to provide necessary  protective devices mandated by the statute. The court stated:

A finder of fact could determine that the chain hoist was an object that fell as a result of the absence of a safety device specified in the statute. For the statute to apply, a worker need not be injured by a falling object actually striking him. It is enough that the injury was “a foreseeable consequence of defendants' failure to provide and place a proper protective device where one was called for”... Plaintiff's injury while trying to prevent the object from falling was an activity arguably entitled to protection under the statute. ¹

     

                 In Runner v. New York Stock Exchange,  the Court of Appeals observed that, although the statute applies to both a worker falling from a height or being struck by an object that was improperly hoisted or inadequately secured, neither  of these scenarios exhaustively defines the scope of the statute.    In Runner, plaintiff and several co-workers had been directed to move a large 800 pound  reel of wire down a set of about four stairs. To prevent the reel from rolling freely down the flight and causing damage, they were instructed to tie one end of a ten-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while other workers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The rate of the reel's descent was not successfully regulated by this improvised system and plaintiff was pulled  horizontally into the bar. He injured his hands as they jammed against it. It was alleged that a pulley or a hoist should have been used.

            Defendants contended that the only  two categories of direct, elevation-related injuries covered by §240(1) are “falling objects” and “falling workers,” citing Narducci v. Manhasset Bay Assoc. As such, defendants argued that because plaintiff neither fell nor was struck by a falling object, § 240(1) should not be applicable.  Plaintiff, however asserted that §240(1) covers hazards related to the effects of gravity and elevation differentials where protective devices are required, and is not exclusively limited to falling objects and falling workers.

      The Court of Appeals in Runner,  holding that defendants’ reading of the statute was  far too restrictive, held that liability was properly imposed under §240(1). Whether the situation called for a device of the type enumerated in the statute was central to the analysis. The Court stated:

 It is plain that a device precisely of the sort enumerated by the statute was not “placed and operated as to give proper protection” to plaintiff, a person employed in the alteration of a building and thus within the statute's stated protective ambit. The breadth of the statute's protection has, however, been construed to be less wide than its text would indicate. As is here relevant, it is generally agreed that the purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction worksite elevation differentials...

 

        The Court of Appeals  rejected the defendants’ reliance on Narducci v. Manhasset Bay Assoc. and  the limited  language  in Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y. 2d 494(1993), where  the court observed that “the ‘special hazards' [covered by § 240(1) ] are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured...” In rejecting this restrictive view, the Court held:

Rather, the governing rule is to be found in the language from Ross...where we elaborated more generally that “Labor Law §240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person”(Ross, 81 NY2d at 501[emphasis in original])

 

            The Court  held that the relevant inquiry was whether the harm flowed directly from the application of the force of gravity to the object. This question  could be answered in the affirmative even in situations where the object did  not fall on the worker.  The Court noted that the harm to plaintiff was as much a consequence of the reel falling as it would have been had the object struck him, stating:

Indeed, the injury to plaintiff was every bit as direct a consequence of the descent of the reel as would have been an injury to a worker positioned in the descending reel's path. The latter worker would certainly be entitled to recover under § 240(1) and there appears no sensible basis to deny plaintiff the same legal recourse.

 

            The court did not specifically define what constitutes a sufficient elevation differential under §240(1) but indicated the salient factors as follows:

The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.

       

       The decision in Runner is significant in the court’s rejection of any determination rigidly limited to a  “falling object” or a “falling worker” analysis. Rather, it reaffirmed that the criterion is “ whether harm flows directly from the application of the force of gravity to the object.”

            Recent Appellate Division decisions have similarly shown broader latitude in addressing statutory liability for  falling objects. In Cardenas v. One State Street LLC, 890 N.Y.S.2d  41 (1st Dept. 2009),  plaintiff had been  instructed to pry from the wall an  80-pound electrical panel that was positioned six or seven feet above the ground, and to lower it to the floor. When the panel separated from the wall, it fell and struck his shoulder and arm. Plaintiff testified that the panel was too heavy and bulky to hold in his hands as he was removing and lowering it. He was not provided with any equipment to hoist or secure it.  As such, he had to  pry it from the wall with a crowbar and let it fall to the ground. Central to the court’s  analysis was a determination as to whether plaintiff could have been protected from this elevation related hazard by the types of devices called for under the statute.  The court held that  plaintiff was exposed to  a hazard within the scope of  Labor Law §240(1) and  was entitled to summary judgment. It stated:

 Such an activity clearly posed a significant risk to plaintiff's safety due to the position of the heavy electrical panel above the ground, even if such elevation differential was slight, and was thus a task where a hoisting or securing device of the kind enumerated in the statute was indeed necessary and expected precisely because the object was too heavy to be hoisted or secured by hand.

   

              In Fontaine v. Juniper Associates, 67 A.D.3d 608, 888 N.Y.S.2d 409 (1st Dept. 2009),  plaintiff was injured when he was  struck by  pieces of lumber that fell from a flatbed truck while he and coworkers were unloading the lumber by hand.  The lumber, which was  stacked at heights above plaintiff's head, had been piled only  inches from the edge of the flatbed. The court held that plaintiff was entitled to summary judgment on the issue of liability under Labor Law § 240(1), as the accident involved an elevation-related  risk within the meaning of the statute. The court further found that  his injuries were attributable, at least in part, to defendants' failure to provide proper protection as mandated by the statute.

            The  decision of the Court of Appeals in Runner provides a significant   interpretation of Labor Law §240(1). In rejecting the rigidity of recent case law, especially with respect to falling objects, the Court has reexamined the  statute in a constructive and flexible manner. The choice was to heavily restrict the application of the statute or to interpret the law based on its language and its clear intent. It is significant that the Court of Appeals was unanimous in its decision.