Brian J. Shoot ()
This month we consider several unrelated Labor Law issues. “Repairing” is one of those activities—along with “altering,” “painting,” “cleaning,” “pointing,” “erection” and “demolition”—that is expressly covered by Labor Law §240, the so-called scaffold statute. The regulatory definition of “construction,”1 which must be considered in determining whether a particular project is “construction” for the purposes of Labor Law §241,2 also includes “repair” work, albeit with a gloss of judicial overlay.3 Yet, “routine maintenance” does not fall within the scope of either statute,4 unless, that is, the “routine maintenance” is related to and occurs within the context of a larger “construction” project.5
So how does one distinguish a “repair” from “routine maintenance”? At the polar extremes, no test is necessary because, to borrow from Justice Potter Stewart, you know it when you see it.6 At one end of the continuum, changing a light bulb is “routine maintenance,” not a “repair,” even if it happens to be a very big light bulb that will be inserted into a very tall Shell Oil sign.7 At the other end of the spectrum, when the work on the subject vessel included removal and replacement of the bulwark, engine overhaul, painting, and installation of new fendering and new deck winches, such was not routine maintenance.8
But what of the closer cases? Each year, there are at least three or four appellate rulings that specifically concern whether the subject work was a “repair” or “routine maintenance” for purposes of Labor Law §§240 and/or 241. Are there any general principles apart from the obvious that can help distinguish “repair” from “routine maintenance”?
Here is one sometimes useful distinction. The Court of Appeals ruled in Esposito v. New York City Indus. Dev. Agency that “replacing components that require replacement in the course of normal wear and tear” constitutes “routine maintenance,” not a “repair.”9
Here is another that pops up from time to time. If the device or other object that plaintiff was allegedly “repairing” was not malfunctioning or inoperable in the first place, whatever plaintiff was doing to it was likely not a “repair” for purposes of Labor Law §§240 and 241.10
The Appellate Division recently provided some further guidance in Soriano v. St. Mary’s Indian Orthodox Church of Rockland,11 In Soriano, the plaintiff, a glazier, was dispatched along with three co-workers “to replace cracked glass panels in the skylight of defendant church’s steeple.” During the process of doing so, plaintiff fell from a ladder and sustained injury. Predictably, defendant argued that the work was “routine maintenance” (and therefore not within the scope of Labor Law §240) and plaintiff urged that it was instead a “repair.” In support of the latter thesis, plaintiff averred that “based on his many years of experience as a glazier, skylight panels such as the ones he was replacing do not ‘crack’ or ‘wear out’ over time and ‘could have remained in place without repair or replacement indefinitely’ unless some unusual event caused them to crack or break.” He also claimed in his affidavit “that the three cracked panels made the skylight useless, as ‘water and other elements’ could pass through the cracks, causing further damage to the panels as well as the interior of the steeple.”
In determining whether the work was a “repair” or “routine maintenance,” the Soriano panel noted the following guidelines, drawn from the case law:
In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” (Dos Santos v. Consolidated Edison, 104 A.D.3d 606, 607, 963 N.Y.S.2d 12 [1st Dept. 2013]; whether the object being replaced was “a worn-out component” in something that was otherwise “operable” (Gonzalez v. Woodbourne Arboretum, 100 A.D.3d 694, 697, 954 N.Y.S.2d 113 [2d Dept. 2012]); and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement (Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D.3d 511, 512, 949 N.Y.S.2d 374 [1st Dept. 2012]).
In the case before it, the court concluded that the work was a repair within the ambit of Labor Law §240 because plaintiff established “that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced.” Also, “[a]s an experienced glazier with over 30 years of experience, plaintiff was more than competent to state that the replacement of these panes constituted repair work, and was not routine maintenance.”
‘Sole Proximate Cause’
The “sole proximate cause” defense will bar the plaintiff-worker’s recovery when there was no statutory violation and the accident was solely caused by the plaintiff himself or herself. The perhaps not very helpful but nonetheless rather clever mantra goes like this:
…it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.12
In some measure, the boundaries of the doctrine are framed by the Court of Appeals’ rulings in Robinson v. E. Med. Ctr.13 and Gallagher v. New York Post.14 In Robinson, the court ruled that plaintiff was the “sole proximate cause” of his injuries when he knew that the six-foot ladder he was using was too short to complete the job safely, “knew that he needed an eight-foot ladder,” knew “there were eight-foot ladders on the job site” and “where they were stored,” and yet “proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without…looking for an eight-foot ladder beyond his immediate work location.”15
In Gallagher, however, the court ruled that the plaintiff cannot be blamed for failing to use some other safety device unless the defendant shows that that other device was “readily available at the work site, albeit not in the immediate vicinity of the accident,” that the plaintiff “knew he [or she] was expected to use [it],” and that plaintiff failed to do so “for no good reason.”16
But what if a plaintiff knows that other safety devices are “readily available,” knows that the job is unsafe absent the use of such devices, yet proceeds without them because she or he is directed to do so by “the boss”? Although the Court of Appeals has not confronted that fact pattern, the Appellate Division has done so and has repeatedly ruled that the defense will not apply in those circumstances.17
That same kind of fact pattern recently recurred in DeRose v. Bloomingdale’s,18 At the time in issue, the only ladder that was not already in use was a “‘rickety,’ old, wooden A-frame ladder.” Plaintiff knew that the available Baker scaffold was safer, and started to fetch it, but his supervisor “told plaintiff that he could not ‘roll the f**** (expletive) scaffold through the store with customers’ and commanded him to ‘[g]o work off the f**** (expletive) ladders’ that were already in the section being demolished.” Plaintiff consequently used the “rickety” ladder and fell, sustaining injury.
Writing for a unanimous bench, Justice Rolando T. Acosta went back to the bedrock principles on which the Labor Law was premised and eloquently explained why the sole proximate cause defense did not apply to the circumstances of the case:
The Labor Law, recognizing the realities of construction and demolition work, does not require a worker to demand an adequate safety device by challenging his or her supervisor’s instructions and withstanding hostile behavior. To place that burden on employees would effectively eviscerate the protections that the legislature put in place. Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work [citations omitted]. When faced with an employer’s instruction to use an inadequate device, many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods. Labor Law §240(1) speaks for those workers and, through the statute, the legislature has made clear that the provision of adequate safety devices at worksites is imperative and that worker safety depends on absolute liability for contractors and owners who fail to furnish such devices [citations omitted].
1. 12 NYCRR 23-1.4[b].
2. Joblon v. Solow, 91 NY2d 457, 466 ; Piotrowski v. McGuire Manor, 117 AD3d 1390, 1391 [4th Dept. 2014] lv to appeal denied, 118 AD3d 1368, 987 NYS2d 276 [4th Dept. 2014]; Dixson v. Waterways at Dixson v. Waterways at Bay Pointe Home Owners Ass’n, 112 AD3d 884 [2d Dept. 2013] lv to appeal dismissed, 22 NY3d 1193, 985 NYS2d 481 .
3. The Court of Appeals ruled in Nagel v. D & R Realty Corp., 99 NY2d 98, 103  that “[t]he Industrial Code definition of ‘construction work,’ which includes maintenance, must be construed consistently with this Court’s understanding that section 241 covers industrial accidents that occur in the context of construction, demolition and excavation”—which, however, did not stop the Court from concluding in Joblon that installation of an electrical wall clock was “construction” within the meaning of Labor Law §241 inasmuch as the task required chopping through a wall and routing of conduit pipe.
4. Soto v. J. Crew, 21 NY3d 562, 568 ; Smith v. Shell Oil, 85 NY2d 1000, 1002 ; Bish v. Odell Farms Partnership, 2014 NY Slip Op 05063 [4th Dept. July 3, 2014]; Selca v. Dutchess Heritage Sq. Partners, 115 AD3d 734 [2d Dept. 2014]; Dos Santos v. Consolidated Edison of New York, 104 AD3d 606, 607 [1st Dept. 2013].
5. Prats v. Port Auth. of New York and New Jersey, 100 NY2d 878, 882 ; Foots v. Consol. Bldg. Contractors, 2014 NY Slip Op 05058 [4th Dept. July 3, 2014]; DeSimone v. City of New York, 2014 NY Slip Op 05033 [1st Dept. July 3, 2014]; Gallagher v. Resnick, 107 AD3d 942, 944 [2d Dept. 2013].
6. Jacobellis v. State of Ohio, 378 US 184, 197, 84 S Ct 1676, 12 L Ed 2d 793  (said with reference to obscenity in an oft-cited concurring opinion).
7. Smith, 85 NY2d 1000.
8. Aguilar v. Henry Marine Serv., 12 AD3d 542, 543 [2d Dept. 2004].
9. 1 NY3d 526, 528 .
10. Kostyo v. Schmitt and Behling, 82 AD3d 1575, 1576 [4th Dept. 2011]; Azad v. 270 5th Realty Corp., 46 AD3d 728, 729-730 [2d Dept. 2007]; Jones v. Vil. of Dannemora, 27 AD3d 844 [3d Dept. 2006].
11. 118 AD3d 524 [1st Dept. 2014].
12. Blake v. Neighborhood Hous. Services of New York City, 1 NY3d 280, 290 .
13. 6 NY3d 550 .
14. 14 NY3d 83 .
15. Robinson, 6 NY3d at 554-555.
16. Gallagher, 14 NY3d at 88.
17. E.g., Boyd v. Schiavone Const, 106 AD3d 546, 547-548 [1st Dept. 2013]; Coates v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 104 AD3d 896, 897 [2d Dept. 2013]; Fernandez v. BBD Developers, 103 AD3d 554, 555-556 [1st Dept. 2013]; Harris v. City of New York, 83 AD3d 104, 110-111 [1st Dept. 2011]; Jara v. New York Racing Ass’n, 85 AD3d 1121, 1122-1123 [2d Dept. 2011]; Jimenez v. RC Church of Epiphany, 85 AD3d 974 [2d Dept. 2011].
18. 986 NYS2d 127 [1st Dept. 2014].