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Construction Accidents and New York’s Labor Law § 240(1)

New York Construction Accidents

Construction work is inherently dangerous. New York recognizes this risk and places special protection to the workers from the risks associated with work site elevation differentials.

Labor Law § 240(1) (also know as the Scaffold Law) provides in relevant 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.

It has long been recognized that the intent of the statute is to protect construction workers “against the known hazards of the occupation” by placing the “ultimate responsibility” for safety practices at the work site upon the owner and general contractor, instead of the worker. Koenig v Patrick Constr. Co.,298 NY 313, 318-319, 83 N.E.2d 133 (1948). The statute is “to be construed liberally to achieve its objectives,” (Felker v. Corning Inc. 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 351 [1997]), and imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury to a worker (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 [1991]).

The Court of Appeals has recently reaffirmed that the statute “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.” Runner v. New York Stock Exchange, Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 281 (2009); quoting Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 52 (1993). The purpose of the “statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk.” 13 N.Y.3d, at 603. When considering whether liability may be imposed pursuant to the statute, “the single decisive question 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.” Ibid.

“Proper protection” means that the device must be appropriately placed or erected so that it would have safeguarded the employee and must itself be adequate to protect against the hazards entailed in the task assigned. Felker v Corning Inc., 90 NY2d 219, 660 NYS2d 349 (1997). The plaintiff is not required to prove what additional safety device, if any, would have prevented his injury. Cody v State, 52 AD3d 930, 859 NYS2d 316 (3rd Dept. 2008) (plaintiff stepped onto an unsecured sheet of plywood over an opening in a platform covering a stairwell and fell below).

The duty imposed by the statute is nondelegable, and control, direction, or supervision of the work by the owner or contractor is not a necessary condition of liability. Gordon v Eastern Ry.Supply, Inc., 82 NY2d 555, 606 NYS2d 127 (1993). Moreover, evidence of industry practice, rules and regulations, contracts or custom and usage is immaterial. Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 107 (1985).

Where the owner or contractor has failed to provide adequate safety device to protect the worker from elevation-related injuries and that failure is a cause of plaintiff’s injury, the negligence, if any, of the injured worker is of no consequence. Hernandez v. Bethel United Methodist Church of New York, 49 A.D.3d 251, 253, 853 N.Y.S.2d 305, 307 (1st Dept. 2008); Apel v. City of New York, __ N.Y.S.2d __, 2010 WL 1753204 (1st Dept. 2010); Picano v. Rockefeller Center North, Inc., 68 A.D.3d 425, 889 N.Y.S.2d 579, 580 (1st Dept. 2009).

The availability of a particular safety device does not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without use of additional precautionary devices or measures. Ewing v ADF Construction Corp., 16 AD3d 1085, 793 NYS2d 306 (4th Dept. 2005); DiMuro v Babylon, 210 AD2d 373, 620 NYS2d 114 (2nd Dept. 1994) (worker provided with safety belt, but not the safety lines to which the belt could be attached).

Where the furnished protective device fails to prevent a foreseeable external force from causing an elevation-related injury to a worker, the worker is entitled to judgment as a matter of law under the statute. Cruz v Turner Construction Co., 279 AD2d 322, 720 NYS2d 10 (1st Dept. 2001).

Liability under the statute will not be found where the plaintiff’s actions were the sole proximate cause of the accident; meaning that there were adequate safety devices available at the job site, but the worker either did not use or misused them. Robinson v. East Medical Center, LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589 (2006). This requirement of a “worker’s ’normal and logical response’ to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so.” Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009).

The fact that plaintiff is the only witness to his accident does not present a bar to summary judgment where his testimony concerning the manner in which the accident occurred is neither inconsistent with his own account provided elsewhere nor contradicted by other evidence. Klein v. City of New York, 222 A.D.2d 351, 635 N.Y.S.2d 634 (1st Dept.1995).

In Mills v. Tumbleweed Management Co., 270 A.D.2d 121, 704 N.Y.S.2d 571 (1st Dept. 2000), the First Department reversed the lower court’s granting of summary judgment to the defendant where a worker was injured while hoisting materials up to the building’s roof by a rope and the load of materials became stuck on the way up, violently jerking the plaintiff forward and causing him to pull back on the rope to keep from falling off the roof. The court found that these facts raised an issue of fact as to whether the injury was elevation-related and thus compensable under the statute.

Subsequent to the Court of Appeal’s holding in Runner, the court have liberally applied the statute where there was an inadequate safety device to protect from elevation-differential risks. Apel v. City of New York, __ N.Y.S.2d __, 2010 WL 1753204 (1st Dept. 2010) (crane dropped a “spud” and a “pin” came up “like a seesaw,” “hurling” plaintiff across the deck of a barge); Luongo v. City of New York, 72 A.D.3d 609, __ N.Y.S.2d __ (1st Dept. 2010) (enormous weight of steel girder caused the jack and plates to fall or shift while being secured, because of the absence or inadequacy of a safety device); Keane v. Chelsea Piers, L.P., 71 A.D.3d 593, __ N.Y.S.2d __ (1st Dept. 2010) (action of waves causing floating stage on which worker was kneeling to drop found to be a result of the differential in elevation); Potter v. Jay E. Potter Lumber Co., Inc., 71 A.D.3d 1565, __ N.Y.S.2d __, 2010 WL 1136812 (4th Dept. 2010) (forklift operator unable to control the descent of the load due to lack of “truss crane” causing forklift to tip forward, catapulting plaintiff into the air, was a injury that flowed directly from the application of the force of gravity to the load hoisted by the forklift).

The Court of Appeals has made it clear, that it is the owner and general contractor that is required to keep the workers safe from gravity related risks and are mandated to provide adequate safety devices as set forth in the statute.

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