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Seven months after the New York Court of Appeals tried to bring clarity to the so-called scaffold law, an appellate decision in Albany suggests that it remains a jurisprudential Rubik’s Cube. The statute, Labor Law �240, imposes strict liability on defendants when workers in “elevated” places fall and are injured. The justices of the Appellate Division, 3rd Department split 3-2 in deciding that an asbestos worker who fell from a ladder is entitled to invoke �240. That means the defendant is strictly liable even if, as alleged, the accident occurred because the worker reached too far. Because the evidence suggested the floor was slippery and conditions were unsafe, it makes no difference if the plaintiff was negligent, the majority said. Gilbert v. Albany Medical Center, 95140, presented the 3rd Department with an opportunity to apply the Court of Appeals’ Dec. 23 ruling in Blake v. Neighborhood Housing Services of New York City, 1 NY3d 280. In Blake, the court said that while �240 should be construed liberally, it is not a catch-all for every elevation-related accident. It specifically declined to expand �240 liability to cover accidents where there are no safety violations and the accident was purely the fault of the plaintiff. The appeal decided earlier this month involved Thomas J. Gilbert, a worker who was standing on a ladder and removing asbestos from a pipe about nine feet off the ground. Gilbert was injured when the ladder slipped and collapsed. He then sued, moving for summary judgment on �240 liability. Justice Thomas W. Keegan of Albany County Supreme Court declined to award summary judgment in a decision last spring, seven months before the Court of Appeals decided Blake. The issue dividing the 3rd Department was largely factual. It centered on whether the floor was slippery and whether the worker’s misuse of the ladder was the sole cause of his injury. Apparently, the floor on which Gilbert set up a ladder had been covered with polyethylene and sprayed with water, resulting in a slippery surface. Gilbert was standing on an A-frame stepladder that had rubber feet. He had been advised not to reach beyond three feet while removing asbestos. He was warned to complete one three-foot section, move the ladder and then work on the next one. The question for the 3rd Department was whether the supposedly slippery floor had anything to do with the accident. Justice John A. Lahtinen, writing for the majority, observed that comparative negligence is not a defense to �240 liability. Yet, under Blake, if a plaintiff’s conduct alone caused the accident there is no liability under �240, Lahtinen said. Here, the majority said, the evidence showed that the ladder was placed on a slippery surface, creating a prima facie showing of a Labor Law �240 violation. The majority concluded that the violation alone resulted in strict liability, regardless of Gilbert’s actions. “The fact that plaintiff may have been extending or reaching from the ladder would implicate comparative negligence, which is not a defense to a section 240 (1) action,” Justice Lahtinen wrote in an opinion joined by Justices Karen K. Peters and Carl J. Mugglin. PLAINTIFF’S ACTIONS Justice Robert S. Rose dissented in an opinion with Justice Edward O. Spain. They said that under Blake, if the mishap was solely the fault of Gilbert and had nothing to do with a slippery surface, he is not entitled to strict liability. They noted that a defense expert concluded that even if the floor was slippery, the ladder could not have fallen in the manner described by Gilbert. Rose said that since Gilbert could move the ladder at will, he was not required to remove asbestos from beyond the area he could safely reach. “Thus, if plaintiff’s fall were caused by improperly overreaching, as the evidence presented by defendants suggests, then his misuse of the ladder would have caused it to be improperly placed rather than the improper placement causing his misuse,” Justice Rose wrote. “Since the defendants raised a triable issue of fact as to whether plaintiff’s alleged improper overreaching and not any slippery condition on the floor affected the ladder’s stability, we would affirm Supreme Court’s order.” Albie Ferrucci of Ferrucci & Corrigan in Schenectady appeared for Gilbert. The defendants were represented by Christine K. Krackeler of D’Agostino, Krackeler, Baynes & Maquire in Menands. The majority and dissent also argued over the 3rd Department’s holding this year in Morin v. Machnick Builders, 4 Ad3d 668. Morin involved a worker who was hurt when an extension ladder slid out from under him, perhaps on ice. The difference between Morin and Gilbert, according to the dissent, is that in the earlier case conditions at the workplace — not the worker’s failure to secure the ladder — were the sole proximate cause of the injury. Labor Law �240 generates an enormous amount of litigation and is a prime target of the construction industry. Industry lobbyists in recent months have sponsored radio ads urging the Legislature to abandon �240, which was enacted nearly 120 years ago, long before the federal Occupational Health and Safety Act (OSHA) and other workplace safety measures. Builders say �240 has been outdated for decades and that it senselessly adds up to $10,000 to the cost of new homes. Trial lawyers oppose effort to revise or repeal �240 and, from a lobbying standpoint, seem to have the upper hand. There appears to be no movement at the Capitol to change it.

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