Brian J. Shoot ()
The issue is deceptively simple. Hardly a week passes in which the Appellate Division does not approve the grant of summary judgment to the plaintiff under Labor Law §240, the so-called “scaffold statute.” But can summary judgment ever be appropriately awarded to the plaintiff pursuant to Labor Law §241(6)?
As Justice Jack M. Battaglia recently noted in his exhaustive analysis in Reynoso v. Bovis Lend Lease, LMB, the arguments, and authorities, go both ways.1
Under the governing Court of Appeals decisions, the plaintiff who asserts a cause of action under Labor Law §241(6) must prove that, (i) someone (not necessarily the defendant) negligently violated a so-called “concrete” specification of Industrial Code 23, and, (ii) such violation was a proximate cause of the subject accident.2
Although responsibility under the statute is “non-delegable” in the sense that the “owners and contractors” within the scope of the statute are responsible irrespective of whether they were personally negligent or in control of the area in issue,3 liability is not “absolute” and may be reduced by virtue of the plaintiff’s or decedent’s comparative negligence.4
Within this context, all agree that the §241(6) plaintiff should not be awarded summary judgment if the facts or predicate regulatory violations are in dispute. Likewise, the plaintiff should not be awarded summary judgment if there is a real dispute whether the regulatory violation was a substantial factor in causing the subject accident.5 But what if it is absolutely clear that someone’s negligent violation of a “concrete” specification was a proximate cause of the accident? What then?
At common law, violation of a mere regulation—as opposed to violation of a statutory standard of care—is merely evidence of negligence, not negligence per se.6 Here, the predicate standards of Industrial Code 23 are, of course, merely state regulations, not statutes. But, on the other hand, a state statute, Labor Law §241, mandates compliance with those regulations.
So, is summary judgment inappropriate even when the violation is indisputable, on the ground that such is merely evidence of negligence? Or does the statutory directive to comply with the regulations elevate their importance, rendering the violation negligence per se (as with a statutory standard of care)?
Until very recently, there was an upstate/downstate divide—which may or may not still exist.
The ‘Downstate’ Rule
Downstate, the First and Second Departments have routinely affirmed or directed summary judgment under Labor Law §241(6), albeit without, to my knowledge, ever addressing whether such is inconsistent with the tort rules generally applied to violation of regulatory standards.7
For example, in Marrero v. 2075 Holding Co.,8 where plaintiff testified that the plywood planks that constituted the flooring “buckled and shifted,” which in turn caused two 500-pound steel beams to fall on plaintiff’s left leg, the Appellate Division for the First Department ruled that “the motion court improperly denied plaintiff’s motion for summary judgment based on violations of 12 NYCRR 23-2.1(a)(2).”9 Likewise, in Cueva v. 373 Wythe Realty,10 where “the section of roof across which [plaintiff] was walking collapsed,” the Appellate Division for the Second Department tersely noted that such occurrence “demonstrated prima facie that [plaintiff] was not provided with ‘sound flooring’ in violation of [12 NYCRR 23-3.3(l)]” and “ [t]here being no triable issue of fact raised in opposition to the plaintiffs’ motion for summary judgment…the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §241(6)…”11 In neither case did the court in any way question whether summary judgment could be awarded; the sole issue was whether summary judgment should be awarded within the facts of the case.
The First Department even held that the plaintiff was entitled to summary judgment under Labor Law §241(6) in a case in which triable issues precluded summary disposition of the plaintiff’s Labor Law §240(1) claim.12
Yet, the Second Department has also, on occasion, deemed summary judgment inappropriate on the stated ground that the predicate violation was merely evidence of negligence.13 In Belastro, for instance, where plaintiff was “working at the ground level” when “he was struck on the head by a piece of wood which allegedly fell or was thrown from the roof,” the Second Department ruled that 12 NYCRR 23-1.7(a)(1) was “applicable here.”14 Yet, it then went on to hold that “while the violation of an Industrial Code provision ‘constitute[s] some evidence of negligence,’ it is for a jury to determine ‘whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.’”15
Because the Second Department has not indicated why the “mere evidence of negligence” rule was applied in some instances but not in others, this has left the rest of us to speculate as to the basis for the distinction. Justice Battaglia concluded in his above-cited Reynoso decision that it “may” be that causation was established in some Second Department cases and not others, or that “[i]t may also be that certain Industrial Code provisions are so closely related to causation that a violation demonstrates prima facie that the work site was not ‘operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places’ [emphasis in original].”
In any event, it is, he reasoned, clear that “the [Second Department] case law establishes that, under certain facts and circumstances, a plaintiff establishes prima facie entitlement to summary judgment on a Labor Law §241(6) cause of action based upon a showing that an applicable Industrial Code provision was violated and that such violation was the proximate cause of the accident or injury.”
So, it would seem that the plaintiff can receive summary judgment on a §241(6) claim in the First Department, and can sometimes prevail on summary judgment in the Second Department. What, then, of the remaining departments?
The ‘Upstate’ Rule
The Appellate Division for the Third Department twice ruled that violation of Industrial Code Rule 23 is merely “evidence of negligence” and could not warrant summary judgment in the plaintiff’s favor.16
However, the Third Department later softened its tone, stating the very different proposition that “a violation of a regulation does not necessarily establish a right to summary judgment on Labor Law §241(6) causes of action [emphasis added].”17 In Copp v. City of Elmira, where “plaintiff was struck by an approximately 20-foot section of pipe that fell on him while being lifted by a payloader into a truck,” and where the Third Department ruled that 12 NYCRR 23-9.4 “clearly addresses situations in which construction equipment is used to lift materials and sets forth pertinent safety standards,” it held—really, without discussion of the “mere evidence of negligence” issue—that “plaintiffs failed to meet their burden of showing that they are entitled to judgment as a matter of law.18
In explanation of the result, the court said that “[t]here are factual issues as to some of the relevant circumstances surrounding the accident that may implicate comparative negligence and, moreover, showing a violation of a regulation does not necessarily establish a right to summary judgment on a Labor Law §241(6) cause of action.”19
The Fourth Department ruled at least twice that a regulatory violation is merely evidence of negligence and that the 241(6) plaintiff therefore could not obtain summary judgment “merely” on the basis of a causally related regulatory breach.20 Yet, the Fourth Department last year held that a plaintiff was entitled to summary judgment under Labor Law §241(6)—without distinguishing or acknowledging its prior, ostensibly inconsistent rulings.
The latter case was Thompson v. 1241 PVR.21 Plaintiff there relied upon 12 NYCRR 23-1.7(d), which stated that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and that “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”
The Fourth Department ob-served that it was “undisputed that there were in fact accumulations of ice and snow and that [the general contractor] was made aware of that fact,” and further noted that defendants “presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation.” Based upon those circumstances, the court affirmed the grant of partial summary judgment to the plaintiff under Labor Law §241(6).22
The ‘Bottom Line’
It thus seems that summary judgment can be awarded to §241(6) plaintiffs in the First Department, can sometimes be awarded to such plaintiffs in the Second Department, and used to be unavailable in the Third and Fourth Departments.
Beyond that, whether the Third Department’s ruling in Copp and the Fourth Department’s ruling in Thompson should be read as adopting the “downstate” view, or whether they were instead aberrant rulings, has yet to be determined.
And none of this can be construed as the “final word” since the Court of Appeals has not yet spoken to the issue.
Brian J. Shoot is a partner with Sullivan Papain Block McGrath & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration.
1. 39 Misc3d 1224(A), 927 NYS2d 146 [Sup Ct Kings Co. 2013].
2. Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 349-350 ; Nostrum v. A.W. Chesterton Co., 15 NY3d 502, 508-509 .
3. Rizzuto, 91 NY2d at 348-349.
4. Id. at 350.
5. There is an interesting issue I should note, even though it is beyond the scope of this article. What would occur if, (a) it were clear beyond doubt that violation of a “concrete” regulatory standard was a substantial factor in causing the subject accident, but (b) there was a triable issue as to whether plaintiff’s negligence was a contributing cause of the accident?
Assuming for sake of argument that Labor Law §241(6) can serve as a predicate for summary judgment, can the plaintiff who may have negligently contributed to his or her accident be granted partial summary judgment on liability with the comparative negligence and apportionment issues reserved for jury determination at the trial?
In theory, CPLR 3212, subd. (e), permits a court to grant partial summary judgment on any issue, cause of action, or defense. That notwithstanding, the Second Department has repeatedly ruled that partial summary judgment cannot be granted in the plaintiff’s favor as to the liability issue in a “negligence” action where there is a triable issue as to the comparative negligence issue. See, e.g., Villa v. Leandrou, 94 AD3d 980 [2d Dept. 2012]; Martinez v. Kreychmar, 84 AD3d 1037, 1038 [2d Dept. 2011]; Roman v. A1 Limousine, Inc., 76 AD3d 552, 552-553 [2d Dept. 2010].
The First Department had at one point asserted the contrary view. Gonzalez v Arc Interior Const., 83 AD3d 418, 419 [1st Dept. 2011] (“Plaintiff demonstrated that defendants were liable for her injuries by establishing that she was crossing the street, within the crosswalk, with the light in her favor, when she was struck by the vehicle driven by Mantone…because comparative negligence is not a complete bar to recovery (CPLR 1411), plaintiff is entitled to summary judgment on her negligence claim”); Strauss v. Billig, 78 AD3d 415, 416 [1st Dept. 2010] (same); Tselebis v. Ryder Truck Rental, 72 AD3d 198, 200 [1st Dept. 2010] (same).
However, it now stands with the Second Department. Calcano v. Rodriguez, 91 AD3d 468, 468 [1st Dept. 2012] (by 3-2 vote: “[b]inding precedent of the Court of Appeals holds that the plaintiff in a negligence action cannot obtain summary judgment as to liability if triable issues remain as to the plaintiff’s own negligence and share of culpability for the accident” [emphasis added]); Maniscalco v. New York City Tr. Auth., 95 AD3d 510, 511 [1st Dept. 2012] (same).
Assuming that partial summary judgment on liability cannot be granted in a “negligence action” in which there is a triable issue concerning comparative negligence, does that equally preclude partial summary judgment in the plaintiff’s favor in a Labor Law §241(6) action? The distinction seemed to matter in Capuano v. Tishman Constr. Corp., 98 AD3d 848 [1st Dept. 2012], but made no difference at all in Hricus v. Aurora Contractors, 63 AD3d 1004, 1006 [2d Dept. 2009].
6. Elliott v. City of New York, 95 NY2d 730 .
7. Marrero v. 2075 Holding Co., 106 AD3d 408 [1st Dept. 2013]; Restrepo v. Yonkers Racing Corp., 105 AD3d 540 [1st Dept. 2013]; DelRosario v. United Nations Fed. Credit Union, 104 AD3d 515, 515 [1st Dept. 2013]; Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., 104 AD3d 446, 451 [1st Dept. 2013]; Cueva v. 373 Wythe Realty, 111 AD3d 876 [2d Dept. 2013]; Grant v. City of New York, 109 AD3d 961, 963 [2d Dept. 2013]; Melchor v. Singh, 90 AD3d 866, 870 [2d Dept. 2011]; Harris v. Arnell Const. Corp., 47 AD3d 768, 768 [2d Dept. 2008].
8. Marrero, 106 AD3d at 146-147.
9. 12 NYCRR 23-2.1(a)(2) states that “[m]aterial and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold.”
10. Cueva, 111 AD3d at 876-877.
11. That regulation provides in pertinent part that “[a]ny person working above the first floor or ground level in the demolition of any building or other structure…shall be provided with safe footing consisting of sound flooring.”
12. Vasquez v. Urbahn Assoc., 79 AD3d 493, 494 [1st Dept. 2010] (“upon a search of the record,” where it was “clear” that defendants violated 12 NYCRR 23-3.3(c) [requiring "continuing inspections…by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material"] and that the stairs in the structure collapsed and injured the plaintiff, plaintiff was entitled to summary judgment under Labor Law §241(6) and 12 NYCRR 23-3.3[c] even though the question of whether the event was foreseeable precluded the grant of summary judgment under Labor Law §240(1)).
13. Seaman v. Bellmore Fire Dist., 59 AD3d 515, 516 [2d Dept. 2009] (“where such a violation [of Industrial Code 23] is established, it does not conclusively establish a defendant’s liability as a matter of law, but constitutes some evidence of negligence”); Belcastro v. Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 746 [2d Dept. 2001] (“while the violation of an Industrial Code provision ‘constitute[s] some evidence of negligence,’ it is for a jury to determine ‘whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances’ [citation omitted]“).
14. The cited provision states in part that “[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection.”
15. Belcastro, 286 AD2d at 746, quoting Rizzuto, 91 NY2d at 351.
16. Paolangeli v. Cornell Univ., 296 AD2d 691, 692-693 [3d Dept. 2002]; Musillo v. Marist Coll., 306 AD2d 782, 784 [3d Dept. 2003].
17. Copp v. City of Elmira, 31 AD3d 899, 900 [3d Dept. 2006].
18. Copp, 31 AD3d at 900.
20. Arenas v. Bon-Ton Dept. Stores, 35 AD3d 1205, 1206 [4th Dept. 2006] (“even assuming, arguendo, that those defendants violated one or both of the regulations, we note that it is well established that the violation of an Industrial Code regulation ‘does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendants’ negligence’ [citation omitted]“); Szafranski v. Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113 [4th Dept. 2004] (similar).
21. 104 AD3d 1298 [4th Dept. 2013].
22. Thompson, 104 AD3d at 1298-1299.