Raymond C. Green (Courtesy photo)
A chuppah is a canopy having symbolic meaning under which a Jewish couple’s wedding ceremony is performed. In McCoy v. Kirsch, 99 A.D.3d 13 (2012) a florist furnished a chuppah for a wedding at the defendants’ catering facility. It came in a set of disconnected parts—metal pipes 10′ long x 3″ diameter, four steel floor plates, wood and a fabric canopy1—which the florist’s workers assembled for use later in the day. Assembly and later on disassembly of the chuppah by an experienced worker would each take more than a few minutes.
On the morning after the wedding, Samuel McCoy, the florist’s truck driver, and a co-worker came to disassemble the chuppah with parts intact and cart them away for future like usages. Brought for the work was a 6′ aluminum (step) ladder which “allegedly” did not have feet on two of its (unnamed) legs, a pipe wrench, a florist’s knife and wire cutters. Said was that when McCoy was a few minutes into the disassembly, standing on the third rung down from the top of the ladder which was held by the co-worker, the ladder slipped causing him to fall and be injured.
Suit premised on Labor Law §240(1) (the Scaffold Law) against the owners of the catering facility ensued, with cross-motions for summary judgment resulting in denial to the defendants, and grant to McCoy.
All of its several elements are requisite to constitute a valid §240(1) claim. View is that four such elements were lacking. Since defendant contended absence only as to one, it alone was addressed by the court. All four elements will be explored in brief.
The defense urged and rejected was that the chuppah was not a structure within the contemplation of the statute. Rejection was based on the lodestar definition in Caddy v. Interborough R.T., 195 N.Y. 415, 420 (1909) that “the word ‘structure’ in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner.”2
Afforded Caddy‘s “broadest sense” definition was a 40′ long x 8′ 6″ wide x 16′ high jacked-up railroad car undergoing repair which would have taken months to build and once built remained permanent and whole during the many decades of its useful life. Likenings using the broadest sense definition were to a ship, a pier for a bridge, a scow of large dimensions, and particularly to a dwelling or workshop of the same shape and dimensions as the railroad car built upon wooden posts or stone piers sunk into the ground. Not favorable comparisons for the chuppah which consisted of a few simple pieces, took minutes to assemble and disassemble, and was of a whole and place for no more than a day of use.
All so juxtaposed, it seems fair to say if the Caddy court was assessing the chuppah the begin-with “broadest sense” definition afforded its railroad car would not have been further magnified many times over to allow the Scaffold Law for the polar opposite in all characteristics chuppah. An indication is that four years earlier Conley v. Lackawanna Iron & Steel, 94 App.Div. 149 (1904), aff’d. 183 N.Y. 551 (1905) deemed not a structure a portable boiler on the outside which was being disconnected after servicing a building’s boiler, a contrivance distant from but far closer in nature to the Caddy railroad car than the chuppah. Nor was the portable boiler considered part of the building it temporarily served.
Further, comparisons to the other Court of Appeals’ opinions McCoy cited for support that the assembled-today-and-disassembled-and-gone-tomorrow chuppah was a structure confute it. Lewis-Moors v. Con-Tel of New York, 78 N.Y.2d 942 (1991) involved as well as the individual telephone pole and its hardware an overarching structure—a network of longstanding poles, cables, guy wires, rods, etc.—which was being removed for replacement. And in Smith v. Shell Oil, 85 N.Y.2d 1000 (1995) the permanent in place “free standing” illuminated Shell Oil sign structure which informed of the gas station’s presence, brand and other particulars was, moreover, an integral component of the gas station structure complex.
Elements Not Addressed
The Owner Element. The court properly noted that the chuppah’s owner was the florist, McCoy’s employer. Equally, the catering facility’s operators were not its title or de facto owners. And the ownership of the catering facility did not stretch to constitute ownership of the chuppah. At best there was a day rental use of a chuppah of no further service after the wedding festivities concluded, with a retaking by the florist once its employees laid hands on to disassemble it.
The Activity Element. The disassembly of the chuppah with parts intact for future usages was not a §240(1) activity. And if attempt is to force “disassembly” into the definition of “demolition,” there is no fit. First, the several advocates for the L.1930 Ch. 602 addition of “demolition” work to §§240 and 241 equated its hazards to those of construction work, hardly a match to McCoy’s activity. Next, the definitions of “demolition” or “demolish” in Merriam-Webster Dictionary, Black’s Law Dictionary and Industrial Code Rule 23-1.4(16) use words such as “razing,” “destruction” and the like, but nowhere even remotely synonymously use the words “disassembly” or “disassemblage.” And the safety standards promulgated in Industrial Code Rule 23-3 for the prevention of perceived potential dangers to demolition workers have not the slightest resemblance to the activity in which McCoy was engaged.
The Device Relationship Element. The opinion’s factual recitation does not picture ladder culpable causal involvement.
That the ladder did not have feet on two of its legs does not automatically fault it. Unlike §240(2) and (3), each of which is by itself a specific safety standard, with its violation negligence per se, §240(1) objectively read is without specifics, thereby requiring augmentation by some specific generally-accepted safety standard which if in some way transgressed would be evidence of negligence. But none was referenced and there is contrary evidence. Pursuant to Labor Law §27 which tasks the Commissioner of Labor to promulgate standards for the safety of employees, Industrial Code Rule 23-1-21 created ladder safety standards which nowhere in its stepladder part, Rule 23-1.21(e), requires they have feet; with the only mention of feet for ladders as an alternative means for securing the lower ends of leaning ladders where the work is from a rung above 10′ (Rule 23-1.21(b)(4)(iv).3
Next, feet or no feet, a step ladder properly used with its legs fully opened and its spreader locked should not slip. Conversely, feet or no feet slippage could occur if not properly used. Adding that other than saying the ladder slipped there is mystery as to the dynamics of the happening, including lack of mention of how the absence of feet caused the accident or their presence would have prevented it, makes for an inadequate showing that there was ladder-related culpability and it caused the accident.
A Passing Observation
On an overview of the statute and its underlying legislative materials at the stages of its evolution over more than a century, the Scaffold Law was never thought about for work environments such as McCoy’s.
Why Analyze ‘McCoy’?
That the L.1969 Ch. 1108 amendment of §240(1) by substitution of a few words created unique new and different sources of liabilities, did not otherwise expand the scope of the statute as a whole, nor was there a slackening of the several boundaries of its individual elements, most still existing from before, others attuned to the 1969 new words and those of amendments thereafter.
That said, there is reality. The lure of its rewards has spawned and will continue endeavors to avail §240(1) where not merited. Accordingly, suggested is element-by-element checklist scrutiny to sort out and frustrate attempts to intrude claims foreign to the statute by the torturing or disregarding any one or more of its boundaries.
1. Presumably along with floral decorations.
2. During the Caddy period when the Scaffold Law first received liberal construction both the common law and the then New York Employers Liability Law otherwise armed employers with difficult to overcome complete defenses, and there was not yet a Workers’ Compensation Law.
3. Judicial Notice of Industrial Code provisions is appropriate (CPLR 4511(a)).