In an article I wrote on New York’s “Scaffold Law” (Labor Law §240(1)), published in January 2013, I noted “there has been a myriad of cases seeking to interpret and clarify the succinctly worded first paragraph of this statute. The trial and appellate courts have created a body of law that is constantly evolving in order to reconcile the often inconsistent decisions in an attempt to clarify the legislative intent by their differing definitions and the application thereof.”
I concluded the article by stating that “Labor Law §240(1) has been and continues to be a statute that will yield differences of opinions between the courts at all levels regarding the nature of a worker’s tasks that fall within the statute: the devices, if any, to be provided and used to protect the worker; the nature and degree of the elevation and height differentials, vis-a-vis the worker and the distance he or she falls or that which an object falls causing injury to the worker… *** Baring further clarity of the statute by legislative amendment, the courts will continue to confront the highly elusive goal of defining with precision the statutory terms of the ever evolving Scaffold Law.” Heymann, New York’s Scaffold Law and the Evolution of Elevation, NYS Bar Journal, January 2013, Vol. 85, No. 1
Ongoing Legal Conundrum
Five years hence, in January 2018, the same sentiments of frustration and/or confusion were expressed in an article titled “Once Again Trying to Make Sense of Labor Law §240.” As set forth by the authors: “Clearly, since the statute was enacted over a hundred years ago (…), courts at all levels have struggled, and frequently failed, to apply the law coherently. The result has been an ever growing body of case law that lacks consistency and increasingly calls into question whether the purported intent of §240 to protect workers from the hazards of elevation related risks and promote responsibility for safety can really be advanced by the statute (footnote and citations omitted).” Ehrlich & Sands, “Once Again Trying to Make Sense of Labor Law §240,” N.Y.L.J. (Jan. 10, 2018), p.4, col.4
At the core of this ongoing legal conundrum is the language of paragraph 1 of section 240 of the Labor Law which (1) sets forth and limits the nature of the work that is covered when an injury occurs and (2) the types of devices that must be provided to the worker to prevent such injuries from occurring:
All contractors and 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 purpose 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.
The phrase “other devices” means that the list as prescribed is not limited so long as the “device” is one that will provide “proper protection” when “furnished” by the employer and utilized by the employee worker.
Recently, the Appellate Divisions in the First and Second Departments, respectively, rendered decisions pertaining to Labor Law §240(1).
The first case involved a worker who failed to obey his superior’s instructions regarding the use of the safety equipment provided and is very straight forward in its reasoning and conclusion.
The second case, however, is more complicated because it involves a worker standing on ground level at the time of his injury and brings into play the issues of the “force of gravity” and the definition of a “structure”.
In Guaman v. The City of New York, 2018 NY Slip Op 01025 (AD 1st Dept. [Feb. 13, 2018), the decedent worker (represented by his plaintiff spouse) was killed when he fell through an unguarded opening in the floor of a construction site. The Supreme Court denied the plaintiff’s motion for summary judgment and the Appellate Division affirmed. It held that a violation of Labor Law §240(1) would have been viable had the defendant(s) not provided an adequate safety device such as a safety line or harness “for a person working over an open area or near an elevated edge (citations omitted)”.
Here, the appellate court found that plaintiff’s acts were the “sole proximate cause” of his accident and death because he chose not to follow specific instructions to remain “tied off” at all times. The court determined that the plaintiff “offered nothing more than speculation” as to why the decedent failed to wear his harness when he fell to his death.
Had the defendant(s) provided insufficient safety devices (Burke v. Hilton Resorts Corp., 2011 NY Slip Op 04602 [85 AD3d 419, AD 1st Dept. 2011]) or the safety ropes could not be utilized as intended because they could not reach the opening, then the decedent’s conduct could not be called into question and his actions would have been protected under the Labor Law and not found to be the sole proximate cause of his death (Kielar v. Metropolitan Museum of Art, 55 AD3d 456 [AD 1st Dept, 2001]).
Gauman makes no finding that the decedent’s failure to follow directions from his superiors, to remain “tied off” at all times, made him a “recalcitrant” worker, which bars recovery under this statute. However, the Appellate Division, in its string of citations refers to Cahill v. Triborough Bridge and Tunnel Auth., 4 NY3d 35 (Ct of App, 2004), which, relying on Blake v. Neighborhood Housing Services of NYC, 1 NY3d 280 (2003), held that “where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability”.
In Cahill, as in Guaman, the employee failed to follow the instructions of his employer to use the safety line provided at the time of his accident. As the Court of Appeals stated: “[t]he word ‘recalcitrant’ fits plaintiff in this case. He received specific instructions to use a safety line … and chose to disregard those instructions.”
In DeJesus v. Metro-North Commuter RR dba Metro-North RR, NYLJ, 3/30/18, p.35, col.3, the plaintiff was injured while cutting and removing a tree that was felled by Hurricane Sandy and landed on top of the “catenary” wires above the railroad tracks. These are the wires that run above the trains parallel to the tracks providing electrical power. In this case, there was no dispute that in order for service to be restored the tree had to be removed.
While standing on the ground, plaintiff, using his power saw, cut through the tree trunk. As he did so, the tension from the catenary wire caused the tree to be thrust into the air where it split in two. Part of the tree then came down upon the plaintiff causing injury to his leg.
The Supreme Court denied plaintiff’s motion for summary judgment on liability under Labor Law§240(1) and the Appellate Division affirmed.
Two factors came into play in determining this case: first, whether the plaintiff was working on a “structure” contemplated by the Legislature at the time of his injury and second, whether his injury was the result of the “force of gravity”? When the injury occurred, the plaintiff was standing at ground level and, thus, there was no issue as to height differentials or elevation involved at the time he was performing his job.
As to the first issue, the court, relying on the definition of “structure” in Lewis-Moors v. Contel of New York, 78 NY2d 942 (Ct. of App., 1991)[“Under Labor Law §240(1), a ‘structure’ is ‘any production or piece of work artificially built up or composed of parts joined together in some definite manner’ (Caddy v. Interborough R. T. Co., 195 NY 415, 420).”], determined that the catenary wires constituted a structure under the statute. While recognizing that tree cutting and removal are not among the jobs covered under the statute, here, the plaintiff’s activities “constituted the first step in effectuating repairs to the catenary wires” and, therefore, the provisions of Labor Law §240(1) were applicable. (For additional cases discussing “definitions” and “structures” under Labor Law §240(1), see Joblon v. Solow, 91 N.Y.2d 457 (1999); McCoy v. Abigail Kirsh at Tappan Hill, 2012 NY Slip Op 06128.)
Notwithstanding that it was determined that the plaintiff was performing an enumerated act that offers protection to a worker, his injuries were not protected because they were “not the direct consequence of the application of the force of gravity to an object or person” but result of the tree being catapulted into the air by the release of tension of the catenary wires when the tree was cut.
Here lies the “Catch 22” in this scenario: Removal of the tree was an essential step in fixing the catenary wires, which are deemed “structures” under Labor Law §240(1). However, the injuries caused by the propulsion of the tree into the air, due to the release of tension to the wires, while plaintiff was performing his “enumerated” duty, which then fell downward and struck him did not warrant any liability or financial remuneration under the statute. (What happened to Newton’s theories of gravity: that for every action there is a reaction and what goes up must come down? As a nostalgic moment for the baby boomers and millennials that may be reading this article, remember the opening line of the smash hit “Spinning Wheel,” made famous by Blood Sweat and Tears in 1968?)
Query: What if the plaintiff were standing above ground level, on a ladder or a raised platform? Would the outcome have been different because he was elevated off the ground at the time of his injury?
Let’s briefly examine the case of Moreira v. Ponzo, 131 A.D.3d 1025 (2d Dept. 2015), where the plaintiff fell from a house while cutting a tree that came down directly on the house during Hurricane Irene. Plaintiff sued, inter alia, under Labor Law §240(1) and defendant moved for summary judgment on the ground that plaintiff was not performing one of the enumerated tasks set forth in the statute. The Supreme Court denied the defendant’s motion and the Appellate Division affirmed. Here, “the defendant conceded that the plaintiff fell from the roof of a building while in the process of removing a fallen tree that had come to rest at that location during a hurricane, that the tree removal was the first step in the process of undertaking structural repairs to the building and that the repairs could only be commenced by removing the tree from the roof. Furthermore, ‘[t]he intent of [Labor Law §240(1)] was to protect workers employed in the enumerated acts, even while performing duties ancilliary to those acts’ (citation omitted). Since the plaintiff was working on the roof of the building, he was subjected ‘to the sort of risk’ that Labor Law §240(1) ‘was intended to obviate’ (citation omitted). Accordingly, the protections of Labor Law §240(1) are to be afforded to tree removal when undertaken during the repair of a structure.” See Lombardi v. Stout, 80 N.Y.2d 290 (1992) (although a tree is not a structure, removal as part of a house renovation is “within the intended purposes of the statute…involving a building or structure.”)
Query: What if the plaintiff in this case was standing on the ground while cutting the tree and a part of it fell on him causing injury?
The last line of Moreira does not specify that protection of the statute only applies if working at an elevated level. Nor is there any mention as to whether the defendants failed to provide adequate protection that could have prevented the plaintiff from falling.
There is no further clarification in that decision.
Injuries caused by objects being propelled upward by the release of tension is not something new. There should be some “foreseeability” by the workers and their employers that injuries could occur in such situations and should be protected.
DeJesus, relies on two cases in concluding that protection under the statute was not warranted: Medina v. City of NY, 87 A.D.3d 907 (1st Dept. 2011) and Quispi v. 80 WEA Owners, 145 A.D.3d 521 (1st Dept. 2016). The plaintiff in each case was denied recovery because their injuries were not considered the result of the force of gravity of an object or person but rather the propulsion of a rail or beam upward by the “kinetic energy of the sudden release of tensile stress in the steel rail [or beam, respectively].” In neither case, however, is it stated that the removal of the rail or beam was a necessary first step in order to repair a “structure” as in De Jesus. See Runner v. NY Stock Exchange, 13 N.Y.3d 599 (2009) and Wilinsky v. 334 E92 HDFC, 18 N.Y.3d 1 (2011).
What makes these cases so fascinating is their unpredictability. Yet, the law, and this statute (Labor Law §240), in particular, needs predictability and uniformity in its interpretations and applications. The Legislature should take a serious look at the “Scaffold Law” and either amend it or rewrite it from scratch to avoid the frustration and confusion it has created for the courts, the litigators and their clients since its inception.
George M. Heymann is a retired judge of the NYC Housing Court, of Counsel to Finz & Finz, and a certified mediator.