Brian J. Shoot
Brian J. Shoot ()

The plaintiff was minding her business, doing her assigned work, when she was struck by a 60-pound pipe. Or perhaps plaintiff was struck by an unsecured wooden dolly, or by an improperly affixed window frame. Does the accident come within the ambit of Labor Law §240(1), the so-called scaffold statute?

Per a Court of Appeals decision rendered earlier this year, Fabrizi v. 1095 Ave. of Americas, Labor Law §240(1) applies only if the plaintiff demonstrates that the object that fell, (a) was being hoisted or secured at the time it fell, or, (b) “‘required securing for the purposes of the undertaking.’”1

The first option is simple enough. But when does an object “require[] securing for the purposes of the undertaking”? For that matter, what is the pertinent “undertaking”?

Despite a series of Court of Appeals’ decisions concerning those very questions, neither answer is entirely clear. I suggest three alternative solutions at the conclusion of this article.

‘Narducci’ to ‘Quattrocchi’

Under the Court of Appeals’ decision in Runner v. New York Stock Exchange, Labor Law §240(1) is not limited to so-called “falling person” and “falling object” cases. “The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object.”2

Nonetheless, most actions claimed to come within the statute’s scope arise from accidents in which the worker fell from a height or was struck by an object that fell from a height. The lead case concerning the latter kind of accident was the Court of Appeals’ 2001 ruling in Narducci v. Manhasset Bay Assoc.3

Narducci involved two different actions that were joined for Court of Appeals review. In Narducci itself, the plaintiff was standing on a ladder in order to remove some window frames when “a large piece of glass from an adjacent window” fell and struck him, cutting his right arm. The court emphasized that “[p]laintiff did not fall from the ladder, nor did the ladder malfunction in any way.” It also stressed that “[t]he glass that fell was part of the pre-existing building structure as it appeared before work began.” In Capparelli v. Zausner Frisch, a worker who had lifted a light fixture into a ceiling grid and had not yet secured the fixture was “about to descend the ladder” when the fixture “began to fall” and “cut his right hand and wrist.” The court again noted, “Plaintiff did not fall from the ladder.”

The Narducci court unanimously ruled that neither accident came within the ambit of the statute. In so holding, the court said that a so-called “falling object” case could come within the ambit of the statute only if the object fell “while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”4

Over the next four years or so, the above-quoted standard defined “falling object” liability. Many Labor Law §240 claims were dismissed on the ground that the falling object had not fallen in the course of being hoisted or secured.5 But the Court of Appeals then spoke again, sending a different message.

The case was Outar v. City of New York. The facts were detailed in a prior appeal in the case.6 The plaintiff “allegedly was injured… when an unsecured dolly, which was used in his work and stored on top of a ‘bench wall’ that was 5½ feet high and adjacent to the worksite, fell and hit him.” There was no claim that the dolly fell in the course of being hoisted or secured. It had been left unsecured, and a gust of wind did the rest. The parties principally disputed whether the height from which the dolly fell was sufficient to implicate the statute. The Court of Appeals unanimously ruled in the affirmative. Unfortunately, it rendered the ruling on abbreviated review, with only a sentence of explanation. The explanation was this:

The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law §240(1)’s protection, and the dolly was an object that required securing for the purposes of the undertaking.7 (Emphasis added).

In ruling as it did, the Outar court did not say what it meant by “an object that required securing for the purposes of the undertaking,” or what made the dolly such an object. Nor did the court directly disown its statement, in Narducci, that the statute applied only if the injury-producing object fell while being hoisted or secured. Ironically, the only authority cited for the result was Narducci itself, which the court cited with a “cf.”

In the wake of Outar, there was a good deal of controversy concerning “falling object” cases. The controversy was nicely typified by the First Department’s 3-2 ruling in Quattrocchi v. F.J. Sciame Const.8

In Quattrocchi, a contractor “placed wooden planks atop two temporary swinging plywood doors to act as a shelf or makeshift scaffold upon which they could set the air conditioner if necessary.” Plaintiff walked through the doorway, accidentally struck one of the swinging doors with his shoulder, and “‘at least three’ planks fell on his head and/or back and shoulder area.”

The Appellate Division majority, pointing to Outar, deemed the statute applicable inasmuch as “the Court [there] made clear that the falling object liability is not limited to cases in which the falling object is being actively hoisted or secured…”9 The dissenters looked farther back, to Narducci, and perceived no reason why the planks that fell on the plaintiff here were any different than the falling glass in Narducci. Outar was distinguishable, the dissenters said, because “[t]he placing of two wooden planks on the top of the doors did not create a situation where a securing device of the kind enumerated in the statute would have been necessary or even expected.”10

The case went up to the Court of Appeals, which, by unanimous vote, affirmed the Appellate Division ruling “that triable questions of fact preclude summary judgment on plaintiff’s Labor Law §240(1) claim.”11 In doing so, the court tersely said,

As our holding in Outar v. City of New York indicates, ‘falling object’ liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured.12

But the court did not otherwise explain what made the planks in Quattrocchi different from the glass in Narducci or more like the dolly in Outar. Nor did it say what, precisely, it meant by the phrase “secured for the purposes of the undertaking.”

‘Quattrocchi’ to ‘Fabrizi’

In the aftermath of the Court of Appeals’ 2008 ruling in Quattrocchi, there were a host of cases in which objects that did not fall in the course of being hoisted or secured were nonetheless deemed within the scope of the statute, almost invariably with citation to Outar or Quattrocchi, and often with the explanation that the object was one that should have been secured for the purposes of the undertaking.13 There were also many “falling object” cases in which the statute was deemed inapplicable, usually with the explanation that the object did not require securing for the purposes of the undertaking, and usually with citation to Narducci.14 But there was very little effort to explain precisely when an object must be secured “for the purposes of the undertaking,” or how Outar and Quattrocchi materially differed from Narducci and Capparelli. Nor, I fear, will the Court of Appeals’ most recent decision in Fabrizi v. 1095 Avenue of Americas answer many questions.

In Fabrizi, the plaintiff was assigned to relocate a “pencil box” that his employer had installed the previous week. The pencil box “was situated between, and affixed to, two pieces of conduit that were four inches in diameter.” Plaintiff drilled holes above and below the pencil box and then removed the pencil box, “leaving the top conduit dangling by the compression coupling near the ceiling.” The compression coupling could not sustain the weight of the 60 to 80-pound conduit. The conduit eventually fell, striking plaintiff. Plaintiff claimed that a more secure “set screw coupling” should have been used to hold the conduit in place.

The Appellate Division could not agree whether the accident came within the statute’s scope. The majority ruled that it did and that the case was different from Narducci because the glass that fell in Narducci was “not being worked on during the renovation but was part of the preexisting building structure.”15 The dissent disagreed, but mainly on the thesis that the subject accident was all plaintiff’s fault.16

By a 4-2 vote, the Court of Appeals deemed the statute inapplicable.17 The majority opinion by Judge Eugene F. Pigott said that plaintiff must show the object fell while in the process of being hoisted or secured or that the object “‘required securing for the purposes of the undertaking,’” citing both Outar and Quattrocchi. The compression coupling, which plaintiff claimed to be inadequate, was not “meant to function as a safety device in the same manner as those devices enumerated in section 240(1),” apparently because “[i]ts only function was to keep the conduit together as part of the conduit/pencil box assembly.” To extend the statute to encompass such a safety device would, the majority said, extend “the reach of section 240(1) beyond its intended purpose to any component that may lend support to a structure.”

Yet, the majority never said why the pipe in Fabrizi was different than the dolly in Outar or the planks in Quattrocchi. Was the difference that the conduit in Fabrizi was part of the structure itself (like the glass in Narducci) and in that sense dissimilar to tools (Outar) or as yet unconnected materials (Quattrocchi)? Was there some other distinction?

Three Alternative Tests

So, how can we define the prerequisite “for the purposes of the undertaking” in such fashion as to, (a) include the dolly left on the half-wall in Outar and the planks left above the doorway in Quattrocchi, (b) exclude the window glass in Narducci, the light fixture in Capparelli, and the conduit in Fabrizi, and, (c) do so in some manner that actually makes some sense? I propose three alternatives.

Option A: the “Foreseeability” Factor. Back in Narducci, one reason that the window glass was not a falling object within the statute’s scope was, the court said, that “[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.”18

Some six years later, in Buckley v. Columbia Grammar and Preparatory,19 an elevator’s frame struck a nail-like spike, causing one or more of the elevator’s counterweights to fall and strike the plaintiff. In analyzing whether this was an instance in which the “falling objects” should have been secured for the purposes of the undertaking, the Appellate Division majority wrote that what is “essential to a conclusion that an object requires securing is that it presents a foreseeable elevation risk in light of the work being undertaken.” This, the Buckley court reasoned, was “what distinguishes the facts here from Outar…”

Yet, if the test for determining whether an object required securing “for the purposes of the undertaking” turns on the question of whether the object posed a foreseeable, elevation-related risk, we may be moving from one problematic standard to another. Experience teaches that foreseeability is largely in the eye of the beholder. There is, in addition, controversy as to the role foreseeability should play in applying a strict liability statute.20

• Option B: Look to the “Safety Device.” Here is a second try. We look at the nature of the safety device that was claimed to be necessary to prevent the object from falling and whether that safety device came within the scope of the statute.

As has been noted, there is language in Fabrizi that supports this approach. The majority there observed that it “cannot be said that the [allegedly inadequate compression] coupling was meant to function as a safety device in the same manner as those devices enumerated in section 240(1).”

But does that really advance the analysis? Or is that nothing more than a tautology, i.e., that if the case is deemed beyond the statute’s scope, the safety device claimed to have been necessary was therefore a safety device beyond the statute’s scope? What, after all, was the qualifying “safety device” in Outar and Quattrocchi?

Option C: It all Depends on What Fell. Here is a third possible test that distinguishes Narducci and Fabrizi on the one hand from Outar and Quattrocchi on the other, but without resort to foreseeability or other concepts that may be problematic to apply. We look at what fell.

If what fell was equipment (e.g., the dolly in Outar) or materials that had not yet become part of the building itself (e.g., the planks in Quattrocchi), the objects should have been secured for “the purposes of the undertaking” and the accident may come within the statute’s scope.

If, however, the object was part of the building (e.g., the glass in Narducci) or had already become part of the building (e.g., the pipe in Fabrizi), then it was not an object that required securing “for the purposes of the undertaking.” The same conclusion would apply to an object that was not part of the job at all, such as a worker’s lunch box or car keys.

Now, it may well be that this test tracks foreseeability in the sense that workers would expect that equipment or materials that are not presently being used will be properly secured, whereas the worker has no such expectation as to objects that are part of the building itself or are extrinsic to the project. It may be that this third test also achieves results similar to the second test, this because whatever safety device was lacking with respect to the falling building component or lunch box was likely not a device within the statute’s scope. But the third test might well be easier to apply and predict.

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. Fabrizi v. 1095 Ave. of Americas, ___ NY3d ___, 2014 WL 641523 (Feb. 20, 2014), rev’g in part, 98 AD3d 864 (1st Dept. 2012), quoting Outar v. City of New York, 5 NY3d 731, 732 (2005).

2. 13 NY3d 599 (1999).

3. 96 NY2d 259 (2001).

4. Id. at 268, italicized emphasis in original.

5. E.g., Atkinson v. State of New York, 20 AD3d 739, 740 (3d Dept. 2005); Rosado v. Briarwoods Farm, 19 AD3d 396, 398-399 (2d Dept. 2005); Doucoure v. Atl. Dev. Group, 18 AD3d 337, 338-339 (1st Dept. 2005); Love v. New York State Thruway Auth., 17 AD3d 1000, 1001 (4th Dept. 2005).

6. 286 AD2d 671 (2d Dept. 2001).

7. Outar, 5 NY3d at 732.

8. 44 AD3d 377 (1st Dept. 2007), aff’d 11 NY3d 757 (2008).

9. Id. at 380.

10. 44 AD3d at 382.

11. 11 NY3d at 759.

12. Id. at 758-759.

13. E.g., Matthews v. 400 Fifth Realty, 111 AD3d 405, 405-406 (1st Dept. 2013); Ross v. DD 11th Ave., 109 AD3d 604, 605 (2d Dept. 2013); Saber v. 69th Tenants Corp., 107 AD3d 873, 874-876 (2d Dept. 2013).

14. E.g., Gaffney v. Norampac Indus., 109 AD3d 1210, 1210 (4th Dept. 2013); Flossos v. Waterside Redevelopment, 108 AD3d 647, 648-650 (2d Dept. 2013); Maldonado v. AMMM Properties Co., 107 AD3d 954, 954 (2d Dept. 2013).

15. Fabrizi, 98 AD3d at 866.

16. Id. at 878.

17. Judge Sheila Abdus-Salaam, who had been in the Appellate Division majority, took no part.

18. Narducci, 96 NY2d at 268.

19. 44 AD3d 263, 269 (1st Dept. 2007).

20. See Ortega v. City of New York, 95 AD3d 125, 128 (1st Dept. 2012).