The Court of Appeals repeatedly teaches that where statutory language is clear and unambiguous, effect is to be given to the plain reading of the words used. The lesson no less serves Labor Law-based actions. Treatment of the subject necessitates questionings.

Section 240

Analytically read, for owner and/or contractor §240 liability to come about, there must be building or structure activity of a kind named, where performance of an aspect at above floor level entails use of a listed or other[1] device to work from (e.g., a ladder or scaffold) or with (e.g., a hoist), and a worker suffers height-related harm due to device-linked culpability in defect, inadequacy for purpose, or unavailability for need. Absent any of these elements, §240 cannot be in play.

To begin, writings which term 240 devices “safety devices” do not truly visualize them. They are plainly work devices of certain kinds, not safety devices. The statute’s concern is not safety devices, but safety in ways pertinent to the devices themselves.

There are also misconceptions that height-related casualties without culpable device implications invoke the statute. The listed or other work device element is explicit in the statute, with the height factor implicitly stemming from the natures of the uses of the devices. Without such a device in some way a culpable cause of an accident, the height factor is of no moment (e.g., Fabrizi v. 1095 Ave. of the Ams., 22 N.Y.3d 658 (2014); Berg v. Albany Ladder Co., 10 N.Y.3d 902 (2008); Broderick v. Cauldwell-Wingate, 301 N.Y. 182, 187 (1950)).

Section 241

That §240 is not involved does not end inquiry inasmuch as there still might be culpability under §241(1)-(5) or §241-a, each of which identifies a space-condition potential for falling worker or object peril, and prescribes a specific means to prevent harm. Some §241(6) implementary Code 23 provisions similarly recognize and address with specific safety measures certain work area height-related concerns (e.g. 23-1.7(b)(1)(i)).

Applicability of §240(1) and §241(6)

In contrast to §§240(2)-(3) and 241(1)-(5), which are each very specific safety standards, with their violations negligence per se, §§240(1) and 241(6) are devoid of specific standards. If code provisions, they would accordingly be afforded no regard. However, as legislative enactments, they are enabled reach outside for implementation to specific standards, the violations of which are only some evidence of negligence.[2]

A difference between §240(1) and §241(6) is that activation of §241(6) relies on specific Code 23 work area safety standards, while §240(1) not being similarly restricted can reach wider to Code 23, other generally-accepted work device safety standards or common knowledge or experience.

Also §240(1) and §241(6) do not share Code 23 provisions in common. Those dealing with §240(1) work devices belong to it alone, as those relating to work area safety are allocated to 241(6). The allocations of separate and apart applicability was long ago recognized and explained (Conte v. Large Scale Development, 10 N.Y.2d 20 (1961); Thomas v. New York City Housing Auth., 9 N.Y.2d 625 (1961) citing to Komar v. Dun & Bradstreet Co., 284 App.Div. 538 (1954)); and on this aspect §§240 and 241 read no differently today than they did then.

While there can be circumstances where separate and independent violations of the two sections concur to cause harm, to be recognized is that the culpability constituting the violation of the one is not also attributed to the other (Bergen v. East 84th St. Constr., 16 N.Y.2d 644 (1965)).

Sections 202 and 240

Bauer v. Female Academy of Sacred Heart, 97 N.Y.2d 445 (2002) applies §240, the Scaffold Law, fully and equally with §202, the window cleaner safety law, to the window cleaning activity. Reasons given for concurrent overlapping applicability, rather than to the opposite, are that the sections differ with respect to their assignments of responsibilities, goals and histories, and with particular focus on “cleaning” as a §240 category.

While much can be explored in questioning Bauer for the present, it is sufficient to turn to sequential enactments Bauer overlooked, to recognize that where §202 applies, it does so alone.

As amended by L.1969 ch. 367, Labor Law §242 provided: “Notwithstanding any other law or regulation, local or general, the provisions of this article and the rules issued thereunder shall be applicable exclusively throughout the state … .”[3]

The next year §202 was amended by L.1970 ch. 822 to add a paragraph giving it exclusivity of applicability the same as Article 10 was endowed with exclusivity of applicability for the several activities within its fold. Ordained was: “Notwithstanding any other law or regulation, local or general, the provisions of this section and the rules issued thereunder shall be applicable exclusively throughout the state … .”

Obviously the two statutes cannot concurrently each govern with respect to the window cleaning activity to the exclusion of the other. And, it is basic that a later in time statute having a single specific focus prevails over another earlier in time and general (McKinney’s, Book 1, Statutes §238). Section 202 fleshed by its Code Rule 21 is tailored singularly to the cleaning of windows of public buildings, and additionally by the 1970 amendment to the cleanings of the glass, plastic and metal surfaces of those of modern design, and nothing other. In contrast, §240 “cleaning” in general has for its own the cleanings of a wide variety of buildings and structures by methods ranging from the coarse sandblasting to the delicate cleaning and restoration of artworks on the ceilings and walls of cathedrals and other edifices. It is, accordingly, patent that by and from its creation §202 was designed and designated to alone govern in the narrow field exclusively allotted it.[4]

Harmony

In sum, within overall harmony as opposed to overlaps, and keeping with the canon against surplusage which calls for avoidance of redundancies, each section has a distinct function apart assigned to itself alone.

Compactly evidencing the harmony of the separateness is the housing of changes to §240(1) and §241 in the same enactment (L.1969 ch. 1108), with the 1970 amendment of §202 following on its heels and those of the 1969 amendment of §242.

Section 240 and CPLR 1411[5]

A final reading to complete the harmony is CPLR 1411, the comparative culpability statute, which is recognized as applicable in §202 and §241 actions but judicially shunned for those under §240. In that there is reliant look back to Koenig v. Patrick Construction, 298 N.Y. 313 (1948) when responsibilities imposed by §240 were to the opposite of today and CPLR 1411 did not yet exist.

CPLR 1411 calls for its application “in any action for personal injury … or wrongful death.” “(T)he word ‘any’ means ‘all’ or ‘every’ and imports no limitation [emphasis added]”, (citation omitted), Kimmel v. State of New York, 29 N.Y.3d 386, 393 (2017). It can have no different meaning in a CPLR 1411 context, accordingly, compelling its use in §240 actions the same as for the others.

That the Legislature did not provide an exception to CPLR 1411 applicability for §240 actions did not leave it free for a court to step in and create one (e.g., People v. Rivera, 25 N.Y.3d 256, 261 (2015)); McKinney’s Book 1, Statutes §§94, 363). As a statute CPLR 1411 is public policy which must be respected and applied in §240 matters, (McKinney’s Book 1, Statutes §126; People v. Golo, 26 N.Y.3d 358, 362 (2015); Kimmel at 29 N.Y.3d 401). And the refusal to thus far recognize the applicability of CPLR 1411 does not preclude doing so for the future (cf. People v. Jones, 24 N.Y.3d 623 (2014). Koenig itself went opposite to 50+ years of holdings before.

Endnotes:

[1] McKinney’s, Book 1 Statutes, §239(b), ejusdem generis, particularly at pps. 409-11 informs for present context “other devices” means other devices such like those named. Also, some named are components of or used in conjunction with devices as a whole.

[2] That violations of the specific safety standards of §§240(2-3) and 241(1-5) are negligence per se, while the violations of Industrial Code or other non-statutorily enacted standards are only some evidence of negligence, see Schumer v. Caplin, 241 N.Y. 346 (1925); Teller v. Prospect Hgts Hosp., 280 N.Y. 456 (1939); Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998); Elliott v. City of New York, 95 N.Y.2d 730 (2001).

[3] “This article” refers to Article 10 of the Labor Law “Building Construction, Demolition and Repair Work” which embraces §§240, 241, 241-a, 241-b and 242 itself.

[4] Of incidental interest, §240 includes the cleaning of windows of buildings under construction within its construction/erection category, not under the “cleaning” category (Rule 23.1.4(13)).

[5] A more extensive analysis is in the Nov. 1, 2013 New York Law Journal titled Labor Law §240 and CPLR 14-A Legislation: A Different Look.

Raymond C. Green is a former General Attorney at the New York State Insurance Fund. He is presently retired.