A number of recent Court of Appeals decisions addressing Labor Law §2401 have left parties struggling for a clearer understanding of a statute that has traditionally been notoriously difficult to apply.2 However, these new cases highlight how the court’s interpretation of this strict liability statute has moved away from a simple literal interpretation toward a nuanced emphasis on circumstantial reasonableness.
For example, in Dahar v. Holland Ladder & Mfg. Co., 2012 NY Slip Op 1332, the court refused to impose liability under §240 where a factory worker fell from a ladder while cleaning a finished wall component product, stating, “we have not extended the statute’s coverage to every activity that might fit within its literal terms.” The court noted that while “cleaning” and “structures” are specifically mentioned in §240, and those terms have been applied beyond construction settings, the claimants’ reliance on the wording of the law was “too simple.”
This is a remarkable change in approach considering that in Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523 (1985), the court described the law as “self executing” and “mandatory,” establishing its own “unvarying standard.” Moreover, the court in Zimmer explicitly rejected evidence of custom and practice as well as expert testimony holding that “the question of circumstantial reasonableness is irrelevant under subdivision 1 of section 240.”
Nonetheless, a trio of cases decided in the fall of 2011 underscores the decline of unvarying literal interpretation and the coinciding growing importance of circumstantial reasonableness including custom and practice in the trade, industry norms, logic, feasibility, practicality given the jobsite setting and objectives of the work, and even common sense.
In Wilinski v. 334 E. 92 Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7 (2011), the court held for the first time that §240 may apply where an anchored object topples over, stating that liability arises out of “a defendant’s failure to provide workers with adequate protection from reasonably preventable gravity related accidents.” [Emphasis added].
In Salazar v. Novalex Contr., 18 N.Y.3d 134 (2011), the court found §240 properly dismissed where it would have been “illogical,” “impractical and contrary to the work at hand” to have a barricade or protective cover over the trench the plaintiff fell into when the very goal of the plaintiff was to fill the hole with concrete. The court stated that “Labor Law §240 should be construed with a common sense approach to the realities of the workplace.”
In Ortiz v. Varsity Holdings, 2011 NY Slip Op 9161 (2011), the court reinstated a §240 claim where a worker lost his balance and fell from an eight-inch-wide ledge of a six-foot-high dumpster finding an issue of fact as to whether any fall protection devices were proper or would have prevented his fall.
Moreover, Dahar may be a reflection of a broader move away from literal interpretation toward circumstantial reasonableness. For example, since Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (2004), courts deciding whether the workers’ own acts were the sole proximate cause of the accident have looked to circumstances such as the availability of the devices, the instructions to use them, and the reasonableness of the workers’ choice not to use viable alternative safer methods to complete the task given the situation.3
Similarly, a number of appellate court decisions have focused on whether it was reasonably foreseeable under particular circumstances that an enumerated safety device would normally be used to protect against an elevation-related special hazard as opposed to a routine, ordinary and usual danger of the workplace.4
This more subtle inquiry may also reflect the general frustration by the bar, the bench, workers in the field and the construction industry with past attempts at bright-line tests for §240.
Search for a Standard
The search for an elusive simple standard was apparent in Runner v. New York Stock Exch., 13 N.Y.3d 599, 605 (2008), relied on heavily by Wilinski. In Runner, the court stated that prior applications of §240 to falling workers and falling objects “did not purport to exhaustively define the statute’s reach.” Id. The court then held that the “dispositive inquiry…does not depend on the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather 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.” Id.
In effect, Runner instructs that analysis under this law should not characterize the device or focus on a fall by worker or object but rather should consider the adequacy of the protection against the risk; the risk of harm directly flowing from the application of gravity to an object or person, i.e., the elevation differential; and the consequence between the adequacy of protection and the injury, i.e., a causal link.
The approach suggested in Runner may be simple to state, but it is difficult to reconcile with other §240 cases. For example, numerous cases both before and after Runner hold that the characterizations of the devices must define the risks to which §240 will apply. See Salazar, supra; Broggy v. Rockefeller Group, 8 N.Y.3d 675, 681 (2007); Melber v. 6333 Main St., 91 N.Y.2d 759, 762 (1998); Rocovich v. Consolidated Edison, 78 N.Y.2d 509 (1991).
It is worth noting that characterizing devices to define applicability of §240 may also be inherently problematic. For example, while the wording of the statute enumerates 11 different fall protection devices predominantly concerning use on elevated work sites, it also includes the phrase “and other devices….” Can a catch-all clearly define specific risks to which the statute is intended to apply? Would using a co-worker, for example, to hold a ladder qualify as an “other device”?
The court in Zimmer went so far as to hold that §240 applied even “if the state of building art is such that no devices have yet been devised to protect” a worker from the danger causing injury. Zimmer, supra, at 524. Under the current standard it would seem impossible for a court to find it reasonable that the proper protection under the circumstances was a not yet invented fictional device.
In addition, elevation differentials have arguably been defined so broadly as to be meaningless as criteria for determining §240 liability. For example, under Runner, §240 applies to unchecked or insufficiently regulated descents5 and courts have found liability under this law for near falls6 and slides down sloped roofs.7
In addition, in Wilinski the court found that §240 may protect a 5’6″ tall worker where he was struck by pipes anchored in the floor standing 10 feet tall, and in Runner, §240 was found to protect a worker injured when he failed to let go of a moving rope that jammed his hands into a metal bar being used as a pulley to lower a heavy reel of wire down steps. In each instance, the court stated that the injured worker suffered “from harm directly flowing from the application of gravity to an object or person.”
Similarly, if height differentials were dispositive, then the outcome in Wilinski would depend on the height of the worker and the §240 finding in Runner would also apply if the worker had fallen down the same steps on which the reel was being lowered.
Moreover, pursuant to Newton’s Law of Universal Gravitation, every point mass in the universe is directly and equally affected by gravity. Moreover, every person and object at a construction site exists in three dimensions, one of which is height.
Thus, under the laws of physics, all accidents involving workers or objects can be directly related to both the application of gravity and height differentials but certainly not every loss gives rise to §240 liability.
Therein lies the confusion in the current state of the law.
As this discussion has attempted to demonstrate, Zimmer, with its literal approach to §240 and unvarying refusal to reference industry standards has been implicitly rejected. Moreover, circumstantial reasonableness may better accord with workplace responsibilities and the reality that safety in the construction industry is highly regulated even if OSHA is not still directly applicable to Labor Law §240 analysis.
The court in Zimmer stated that “…reference to whether safety devices customarily are used, and, if so which ones give proper protection would allow owners and contractors to diminish their obligations under that statute and set their own standard of care for the protection of workers at the worksite [emphasis added].” Id. at 524, 525. But owners and contractors in New York do not set their own individual standard of care.
Justice Potter Stewart famously defined obscenity in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), as “I know it when I see it.” Community standards may be to obscenity what circumstantial reasonableness is to the Labor Law.
Whether this more flexible interpretation of §240 results in fairer outcomes remains to be seen but common sense, practicality, and logic will certainly be subject to varying interpretation.
Thus, we can expect that the present approach by the court will result in more use of experts, more reference to industry custom, further emphasis on what was reasonably foreseeable, more divided decisions and more law journal articles.
Julian D. Ehrlich is senior vice president, claims, for Aon Construction Solutions Group in New York.
1. Labor Law §240 states in pertinent part: Scaffolding and other devices for use of employees. 1. All contractors, 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 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 giver proper protection to a person so employed.
2. “Recent Labor Law §240 Decisions Don’t Go Far Enough in Protecting Workers” by Mitchell J. Sassower, New York Law Journal, Jan. 30, 2012; “Labor Law §240 and the Problem with Permanence,” by Brian J. Shoot, NYLJ, Feb. 3, 2012; “Court of Appeals Refuses to Limit Scope of Labor Law Section 240 (1),” by David L. Scher and Daniel P. O’Toole, NYLJ, Jan. 20, 2012; “‘Wilinski‘: New Look at Falling Object Liability Under Labor Law §240 (1),” by Robert S. Kelner and Gail S. Kelner, NYLJ, Nov. 22, 2011.
3. “Establishing Proximate Cause in Construction Site Accidents” by Julian D. Ehrlich, NYLJ, March 13, 2009.
4. “Factoring in Foreseeability in Strict Liability Scaffold Cases” by Julian D. Ehrlich, NYLJ, March 7, 2011.
5. Runner, at 603.
6. Reavely v. Yonkers Raceway Programs, 88 A.D.3d 561 (1st Dept. 2011).
7. D’Acunti v. N.Y. City Sch. Constr. Auth., 300 A.D.2d 107 (1st Dept. 2001).