Brian J. Shoot

Imagine, if you will, there were thorough, sensible, and highly detailed regulations that set forth mandatory safety standards governing the dangerous construction and demolition fields. Imagine further that the regulations were continually updated and improved so as to incorporate technological advances and reflect the wisdom of governmental and non-governmental safety studies. And imagine that a cadre of governmental inspectors encouraged compliance with those standards (well, at least up until 2016) by investigating (and imposing fines) with respect to the occurrence of fatal or very serious accidents, and by randomly inspecting construction sites without advance warning.

Finally, and while keeping all of the above in mind, imagine that when assessing fault for purposes of personal injury litigation arising from construction/demolition accidents we completely ignored those detailed and continuously updated regulations and instead relied solely upon a different set of regulations that (1) were last amended in 1975, (2) are virtually unknown outside of the courtroom, and (3) are not enforced or supported by any form of governmental inspection, which is why they are virtually unknown outside of the courtroom.

If you have all of that in mind, you have just grasped the essential import of Labor Law §241[6] as construed by the New York courts. In determining whether the statute was violated, we are directed to wholly ignore whether the owners and contractors complied with the enforced and continually updated OSHA (federal) safety standards and we focus solely on the contractors’ compliance or non-compliance with the not-amended-since-1975 state standards, or more accurately with those state standards that are sufficiently specific to warrant consideration.

Because this is not in any sense new law, those of us who deal with the statute fairly regularly become inured to the basic illogic on which the entire §241[6] edifice rests. Yet, it did not have to be this way.

In the remainder of this article, I briefly review, (1) the series of decisions that led us to where we now are, (2) the real world absurdity of our reliance upon a set of regulations that are essentially forgotten everywhere except the courtroom, and (3) a possible legislative fix on which the plaintiffs’ lobby (e.g., unions and the plaintiffs’ personal injury bar) and the defendants’ lobby (e.g., business and insurance interests) might even agree.

Painted Into the Rule 23 Corner

Labor Law §241, subd. 6 requires that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places,” language we shall soon examine more closely. The statute is indelibly linked with its “sister statute,” Labor Law §240, but markedly differs from Labor Law §240.

Labor Law §240 has been construed to apply solely to elevation-related hazards (Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 514 (1991)) and to impose “absolute liability” for its breach (Sanatass v. Consol. Inv. Co., 10 N.Y.3d 333, 339 (2008)). Section 241[6] is not limited to elevation-related hazards and has been construed to impose “nondelegable” but not “absolute” liability. This essentially means that liability under the latter statute is contingent upon proof of fault and may be reduced by virtue of the injured worker’s own comparative fault, but that the site higher-ups cannot disclaim responsibility for the negligence of their hirees. St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 413-14 (2011).

The Court of Appeals detailed the history of Labor Law §§240 and 241 in its decision in Allen v. Cloutier Const., 44 N.Y.2d 290 (1978). The abridged version is that the two statutes were enacted in the early 1900s when it became apparent to New York’s legislature and to others across the country that builders, who would of course realize greater profits if they finished the job as quickly and cheaply as possible, would often prioritize those concerns over that of the workers’ safety. The statutes were enacted to compel safe working conditions, and thus to reduce the incidence and severity of injury.

The two statutes were significantly amended, against the workers’ interests, in 1962. The 1962 amendment of Labor Law §241 made liability dependent on that defendant’s fault (L. 1962, ch. 450). This essentially rendered the statute inconsequential inasmuch as it meant that liability would be imposed only when and to the extent that the common law already did so.

The 1962 amendments precipitated a predictable surge in fatalities and serious injuries. As the Court of Appeals noted in Allen, with the diminishment of Labor Law §§240 and 241, “[o]wners and contractors were able to insulate themselves from liability for injuries caused by dangerous and unlawful conditions on the job site, and indeed were encouraged to disregard such conditions, lest they be found to be in control.”

So, after seven years of carnage, the Legislature amended Labor Law §241, in 1969 (L. 1969, ch. 1108), so as to once again “‘place[] ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.’” Allen, 44 N.Y.2d at 300, quoting N.Y. Legis. Ann., 1969, p. 407.

This brings us back to the actual language of Labor Law §241(6) and how that language has been construed. Presumably, had the Legislature intended to require only that contractors engaged in construction/demolition comply with the minimum regulatory standards in those instances in which such standards existed, the Legislature would have said just that. The statute instead requires that all areas “in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places” (emphasis added). However, the next sentence of Labor Law §241[6] additionally provides that “[t]he commissioner [of Labor] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work … shall comply therewith.”

Putting those two sentences together, the Court of Appeals decided that the statute did not really require “reasonable and adequate protection and safety” and instead required only that contractors comply with whatever rules the commissioner might make. Put differently, compliance with such rules was “reasonable and adequate protection and safety” within the meaning of the statute. Thus, if the commissioner did not enact any rules governing some particular activity or hazard, such meant that the site conditions, no matter how unsafe, nonetheless complied with the statutory mandate to provide “reasonable and adequate protection and safety” since non-compliance was in that instance literally impossible.

In concluding that a plaintiff alleging violation of Labor Law §241[6] would have to prove violation of a predicate regulation, and even more that the plaintiff would have to prove violation of a specific “concrete” regulatory standard (as opposed to a “broad, nonspecific regulatory standard”), the Court of Appeals reasoned in Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 504 (1993) that the alternative “would seriously distort the scheme of liability for unsafe working conditions that has been developed in our case law.” It further observed that Labor Law §200, which codified the common law duty to provide a safe place to work, would then “be rendered all but superfluous in industrial-accident litigation.” In fact, neither rationale made much sense.

As to the first justification for the non-literal construction of the words “reasonable and adequate protection and safety” (i.e., that literal construction would “serious distort” the common law rules), the entire point of the statute was to alter the scheme of liability that had existed under common law. Moreover, statutes are usually enacted for the purpose of effecting some change (as opposed to codifying the status quo). As to the second rationale for the non-literal construction of the statute (i.e., that literal construction would render Labor Law §200 “all but superfluous in industrial-accident litigation”), Labor Law §200 applies to all kinds and places of employment, not just construction/demolition work, and it is therefore unsurprising that the lesser duty which applied in ordinary, less dangerous employments might be rendered “superfluous” in the construction/demolition field in which greater protections were deemed necessary.

But these are points that relate to an issue that was conclusively resolved, sensibly or otherwise, decades ago. The Court of Appeals ruled in Ross that violation of a specific or “concrete” regulatory standard was prerequisite to imposition of liability under Labor Law §241[6]. And the court thereafter limited the statute’s scope even further. The court later ruled, in a footnote in Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 351n (1998), that violation of OSHA regulations—even highly specific or “concrete” OSHA standards—could not give rise to liability under Labor Law §241 because those regulations were “not the type which establish a nondelegable duty.” It then ruled in Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 507-08 (2010) that even violation of specific or “concrete” state regulations could not support imposition of liability unless the state regulations were part of or referenced in Industrial Code Rule 23, i.e., the regulations that were promulgated pursuant to Labor Law §241.

As a result of Ross, Rizzuto, Nostrom and their progeny, the statutory directive to “… provide reasonable and adequate protection and safety …” is construed as if the statute instead required those in charge of construction sites do no more than “… comply with those portions of Industrial Code 23, if any, that set forth specific and not merely general standards as to the activity or conduct in issue … .”

The difference between “reasonable and adequate protection and safety” and the way that phrase has been construed by the courts is dramatically illustrated by the arguments and result in Pavlou v. City of New York, 8 N.Y.3d 961 (2007). Pavlou arose from an accident in which the site workers were using a boom crane to move a large steel plate. There was no doubt that the boom of the crane snapped during the course of the lift, and that it crashed down on the plaintiff. Plaintiff urged that the crane had been overloaded in violation of 12 NYCRR 23-8.2[g][2][iii] and that such should give rise to liability under the statute. There was, however, a defense which ultimately prevailed.

The defense was that the boom was badly cracked and, indeed, so badly cracked that any appreciable load would have snapped it. Why, one might ask, was it a defense that the contractors were using a boom that could not be safely used to lift any load? It was a defense because Industrial Code Rule 23 did not contain any directive which specifically prohibited use of a cracked boom.

This, in the proverbial nutshell, is where the non-literal construction of “reasonable and adequate protection and safety” has led. Had the defendants overloaded the boom, even by 10 percent or 20 percent, and had that caused the subject accident, liability would have followed since there was a “concrete” regulation which forbid overloading. If, however, defendants instead used a crane that was so defective that it could not carry any weight at all—which is what the jury determined to have occurred—such was not violative of the directive to provide “reasonable and adequate protection and safety” since there was no Rule 23 provision which forbid use of a crane with a cracked boom. And nor are the rules likely to be amended to add any such prohibition since the provisions of Rule 23 have not been amended for literally decades.

A Tale of Two Regulatory Schemes

We journey from the absurd to … the more absurd: the strange history of Industrial Code Rule 23.

In 1970, Congress enacted the Occupational Safety and Health Act (29 USC §§651 et seq.) Congress there declared that its purpose in doing so was “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. §651[b]. The secretary thereafter promulgated the OSHA standards and an entirely new governmental entity was created to review and enforce those federal standards.

Congress did not, however, claim exclusive authority to promulgate employment safety standards. Quite the contrary, 29 U.S.C. §667[b] provided that “[a]ny State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated,” could submit such a plan for federal approval. As was explained in Irwin v. St. Joseph’s Intercommunity Hosp., 236 A.D.2d 123, 127 (4th Dept. 1997), New York submitted such a plan in 1973 but thereafter withdrew the proposed plan two years later.

Industrial Code Rule 23 was filed in 1972. A few of its provisions were amended in 1973, and a few more were amended in 1975 (more specifically, on Jan. 31, 1975, effective Feb. 1, 1975).

So, since 1972, there have been two sets of regulations that govern construction site safety in New York: the federal OSHA standards set forth at 29 CFR 1926.1 et seq. and the state standards set forth at 12 NYCRR 23-1.1 et seq. As has been shown, while the OSHA standards may be pertinent for other persons, only the latter “count” for purposes of Labor Law §241[6]. Yet, the state standards hardly exist at all outside of the courtroom.

First, Industrial Code Rule 23 has not been amended since 1975. The standards, which were fashioned decades before the emergence of smartphones and the Internet, remain just as they were even though the world itself has greatly changed. In contrast, the OSHA standards have been continually updated. For example, when OSHA revised its standards for walking-working surfaces in 2010 it issued an almost 200-page report (at 75 FR 28862.01) that explained, inter alia, that the new standards were intended to update the old rules “to include new technology” “and industry methods” (at 22862), that the new rules would increase “consistency between construction, maritime, and general industry standards” (id.), and that OSHA estimated “the proposed standard will prevent 20 fatalities and 3.706 injuries annually” (at 28864).

Second, there is no state analog to the OSHA enforcement mechanism. Although the State regulations remain “on the books” and are freely available on the state Department of Labor’s website, there are no state inspectors to enforce the provisions. The budget cuts were made back in the 1970s for the sensible reason that there was no need for the duplication of OSHA’s work.

Third, it is quite common upon deposing the people responsible for construction site safety to discover they had no idea that state safety standards actually existed, much less a working knowledge of them or a copy of the state standards. When safety experts out in the field talk about the safety standards, they mean the OSHA standards, for those are the only standards that actually matter out in the “real world.”

We thus reach the end of our 241[6] journey. Having started out with a directive to provide workers in the dangerous construction/demolition field with “reasonable and adequate protection and safety,” we somehow ended up with a requirement that mandates only that the contractors comply with a subset of certain regulations that were enacted in the 1970s, have not been amended since that time, and are not likely to be amended any time soon. The obvious question is what, if anything, can be done about it.

One Possible Way Forward

In looking ahead, I make two assumptions. First, given that the Court of Appeals has repeatedly ruled that the Labor Law §241[6] mandate to provide “reasonable and adequate protection and safety” is in fact nothing more than a directive to comply with a subset of the provisions of Industrial Code Rule 23, it is highly unlikely that the Court of Appeals will reverse course at any point in the foreseeable future.

Second, while those sympathetic to the workers’ cause may wish that Labor Law §241[6] were amended as to really require that construction/demolition workers be provided “reasonable and adequate protection and safety,” any such proposal would no doubt be vigorously opposed by the defense lobby since such would constitute a substantial expansion of liability as compared to current law.

Yet, I wonder if there is a more modest change that might even garner bipartisan approval. What if the statute were amended to require compliance only with the OSHA standards, or, alternatively, only with those OSHA standards that have the same level of specificity that is now required (under Ross, et al.) with respect to Industrial Code Rule 23?

From the workers’ perspective, liability would no longer be dependent on whether a state regulation existed back in 1975. From the industry’s perspective, it could focus solely on one set of standards, the same OSHA standards that govern construction site safety across the country. From the public’s perspective, while it would still remain that a defendant could escape liability solely because a work practice was deemed so obviously dangerous (e.g., using a defective crane) as to render a specific prohibition unnecessary, there would at least be the possibility that any such gaps would be corrected over the course of time.

Such, at any note, is my proposal.

Brian Shoot is a partner with the firm of Sullivan Papain Block McGrath & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers.