Jason A. Richman, .Esq.Jason A. Richman, Esq.,.Attorney and Counselor at Law.P.O. Box 312.Victor, New York 14564.Telephone: (585) 362-2787.E-Mail: jasonarichman@gmail.com
Jason A. Richman, .Esq.Jason A. Richman, Esq.,.Attorney and Counselor at Law.P.O. Box 312.Victor, New York 14564.Telephone: (585) 362-2787.E-Mail: jasonarichman@gmail.com ()

Almost since inception, the legislature’s efforts to protect construction workers in proximity to elevation differentials have met with resistance. The current iteration of these efforts, New York Labor Law §240(1), the Labor Law’s commonly referenced “scaffold section,” has received more judicial attention than almost any other single statutory enactment. Literally thousands of motions and appeals arising from it have taxed legal minds and court dockets over the years. As with most large crowds, the sounds of this multitude are not entirely harmonious. The legislatively mandated protections for workers who might fall, and those upon whom they, or the matériel, may chance to land, are not consistently applied. This is true not just at the preliminary levels of application, but from the ground level right up to the ceiling of the Court of Appeals.

One particularly stark example of the vicissitudes of our high court’s application of this statute arises in the setting of accidents involving not just the elevation-related hazards upon which the statute is focused, but where other more commonplace construction site hazards also occupy a link or two in the chain of proximate causation.

Years of Consistency

For decades, the law has been clear that injuries involving other hazards “count” if there was an elevation-related risk in addition to those other dangers and the elevation-related risk was “a” proximate cause of the injuries. In one seminal case, Gordon v. E. Ry. Supply, 82 N.Y.2d 555 (1993), the worker was not even injured by the fall itself; rather, he was injured by a defective sandblaster in circumstances where the fall exposed him to that defective tool’s injurious force. The Court of Appeals, in explicitly addressing a raised argument that this risk was outside of the scope of §240(1) protections, held that it was not outside the scope because a violation was a proximate cause.

Defendants’ failure to provide plaintiff with a safe scaffold … was a substantial cause leading to his fall and the injuries he sustained. Injury was a foreseeable result of cleaning railroad cars from an elevated position, and a fall and injury occasioned by an allegedly defective sandblaster used in the process is not of such an “extraordinary nature” that defendants’ responsibility for the injury should be severed.

82 N.Y.2d at 562.

The activating component of this factual scenario is the elevation driven risk, not the details of how it was addressed by the defendants, or the precise mechanism through which gravity drove the injurious modality.

In congruence with this reasoning, the court in Ross v. Curtis-Palmer, 81 N.Y.2d 494 (1993) declined to extend the protections under the scaffold section to a defective scaffold that caused injury by forcing the worker into a deleteriously contorted position. The Court of Appeals wrote that “however unsafe the makeshift “scaffold” may have been in that respect, it cannot be said that the device did not serve the core objective of Labor Law §240(1)—preventing plaintiff from falling …” Where the provided and utilized elevation-related safety device successfully protected the involved worker from the activating elevation differential (prevented any fall), there is no violation even where a defective scaffold directly causes a non-gravity related injury (back strain from bending over). Where the elevation differential is not involved in causing an injury, the application of the statute is very limited; on the other hand, where gravity drives the injury, or at least drives the worker to the injury, a violation has occurred under Labor Law §240(1) as a matter of long-standing law.

In a 2009 decision, Chief Judge Jonathan Lippman, writing for an unanimous court, identified and clarified these decisive issues in applying this law. The case involved a worker whose hands were drawn into a pinch point by the mutual attraction of the Earth and an 800 pound reel of wire as the reel was being lowered across an elevation differential. In Runner v. New York Stock Exch., 13 N.Y.3d 599 (2009), Chief Judge Lippman wrote::

[T]he dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed … Rather, the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential … It is plain that a device precisely of the sort enumerated by the statute was not “placed and operated as to give proper protection” to plaintiff …

13 N.Y.3d at 603.

So Judge Lippman clearly expressed that even outside of the classic cases of a worker who falls or who is struck by something that fell, application of this law is governed by the risk associated with an elevation differential and whether or not the worker was adequately protected from harm arising from that risk.

In Klein v. City of New York, 89 N.Y.2d 833 (1996), consistent with this explanation of the law, though predating its clear enunciation in Runner, a worker who accidentally placed a ladder on a slippery substance was entitled to summary judgment when that ladder slipped out from beneath him, due to the condition of the floor upon which he had placed it, while he was working at a height. The Court of Appeals plainly held: “Plaintiff has established a prima facie case that defendant violated Labor Law §240 (1) by failing to ensure the proper placement of the ladder due to the condition of the floor …” (citation omitted). Work needing to be done at the ceiling level requires the use of a safety device to cross the elevation differential between the ceiling and the floor; there is an elevation-related risk in crossing such a gap. Where the sole provided device precipitates a fall across that elevation differential, even if the failure of the device is cause by a slippery substance, a violation of §240(1) has occurred. This seems simple enough; and so far all of this law is consistent and without discord.

A Departure in ‘Nicometi’

The stark inconsistency alluded to above arises from the court’s recent decision of Nicometi v. The Vineyards of Fredonia, 25 N.Y. 3d. 90 (2015). In Nicometi, a worker whose safety device slipped out from beneath him while he was working at a height was not protected by Labor Law §240(1) because the untoward movement of his safety device was caused by the commonplace hazard of a slippery substance on the floor beneath it. This decision, exactly the opposite of Klein, suggests that even where a worker falls from an elevated construction task to the ground below because of the failure of his sole safety device (one which was inappropriate to the hazards inherent in the task requiring its use as a matter of law (12 NYCRR §23-5.22(f)), he is excluded from the protections that the legislature mandated if a commonplace hazard like a known slippery substance foreseeably contributes to the failure of the device precipitating his fall. Poppycock! (Yes, from this invective it can be correctly deduced that I am the lawyer who lost this Labor Law §240(1) claim at the Court of Appeals). The majority in Nicometi wrote over dissent:

Unlike ladders, stilts are not “placed” in a stationary position and expected to remain still to ensure their proper and safe use. Rather, stilts are intended to function as extensions of, and move with, the worker during performance of the designated task …

25 N.Y. 3d at 101.

In other words, it is not improper for stilts to slip out from beneath a worker that they are supporting because stilts should move. Asserting that stilts are not “placed” and therefore fall outside the protections of the Labor Law, even when they themselves kick out and fall while supporting an elevated worker, is a clear example of a court “focusing myopically” on the precise characterization of the device employed (dissent of Chief Judge Lippman in Fabrizi v. 1095 Ave. of the Ams., 22 N.Y.3d 658 (2014)), instead of considering the controlling inquiry—whether an insufficiently protected elevation-related hazard played a role in causing the injuries. Incidentally, this errant focus on device characterization and “placement” completely ignores the concomitant explicit statutory requirement of proper “operation,” but, fundamentally, and obviously, stilts are placed, and, as extensions of our feet, which are also placed, they are expected to stay where we place them until some volitional act of the user causes them to move.

Furthermore, the decision’s principle thrust, that a commonplace hazard that causes a fall across an elevation differential somehow supersedes and negates the protected exceptional hazard, is not only errant, but disturbing in its implications for the future application of this statute to protect workers. It has frequently been the case that a common hazard contributed to the happening of a §240(1) accident (not just Klein (slippery substance); Runner (pinch point); and Gordon (defective tool) as above, but also Striegel v. Hillcrest Hgts. Dev., 100 N.Y.2d 974 (2003) (roof top frost); Jiminez v. Nidus, 288 A.D.2d 123, (1st Dept. 2001) (icy floor); and Gallagher v. New York Post, 14 N.Y.3d 83 (2010) (a jammed tool and a weakened hand)).

If any coexisting common hazard eliminates the protections of this law, then the law is nearly meaningless because dangers in construction are very common, and common ones far more frequently occurring than those of the exceptional sort. Trips and slips and loosed grips all occur with regularity at construction sites, and certainly they often occur in the absence of Labor Law §240(1) violation; however, where such occurrences come to pass in the immediate vicinity of an elevation differential, and where gravity drives the worker to his injury, with no safety device constructed, placed “and” operated to protect him, a violation has occurred as a matter of inescapable law, or at least this was the case until the Court of Appeals issued its decision in Nicometi over the elegant dissent of Chief Judge Lippman (“Labor Law §240(1) requires that equipment be so “constructed, placed and operated” as to give proper protection to a worker, and where employers order workers to use stilts or ladders in unsafe places (ordering them essentially to work around a hazard, as occurred here), Labor Law §240(1) should apply …”).


Already, Nicometi has been cited in dozens of reported decisions; and it has been asserted far more often than that at the trial level for the proposition that common hazards negate exceptional ones in the application of §240(1). Ultimately this errant holding will be overruled or at least strongly limited, but until that happens, it will continue to create unnecessary strain on our court system by sounding a discordant note in the jurisprudence of Labor Law §240(1) (See Landi v. SDS William St., 2016 NY Slip Op. 08340 (1st Dept. Dec. 13, 2016) (distinguishing Nicometi). This in addition to the damage that it will do to the legislative effort to protect construction workers from elevation-related dangers; a motivation that obviously has a vastly greater lexical priority than the improper judicial re-legislation of §240(1) to exclude moveable safety devices and to cause §240(1) to yield to coexisting commonplace construction site hazards.