Brian J. Shoot
Brian J. Shoot ()

The Court of Appeals ended March with a 4-to-3 ruling that at least some defense advocates are already heralding as having effected a sea change in the jurisprudence concerning Labor Law §240, the so-called “scaffold statute” that imposes “absolute liability” for certain elevation-related hazards that may arise during the course of covered construction work.

The case, O’Brien v. Port Authority,1 presented the issue of whether an exterior stairway that was wet, because it was raining, was violative of the statute as a matter of law. The O’Brien majority held that the issue was one of fact in the context of the proof.

Some defense counsel construe the majority ruling as effectively holding that, with the possible exception of those cases in which the ladder, scaffold, or other elevating or safety device actually breaks, the defendant can now raise a triable issue of fact as to any and all dangerous site conditions simply by having its expert intone that the allegedly unsafe condition conformed to industry standards.

That, I suppose, is one reading of the opinion. Yet, whether the majority actually intended such a radical departure from the landmark ruling in Zimmer v. Chemung County Performing Arts2 appears highly doubtful, at least to this writer. I think it far more likely for the reasons indicated below that O’Brien was, at bottom, just about exterior stairs and the impossibility of keeping them dry when it rains.


The Court of Appeals’ 1985 decision in Zimmer encompassed two actions that were joined for purposes of Court of Appeals’ review: Zimmer itself and Hunt v. Spitz Constr. In each case, the plaintiff was an ironworker who fell from a significant height. Also in each case, the plaintiff-worker had not been provided with any safety devices to prevent him from falling.

In Zimmer, the defendants urged in their defense that the accident occurred at an early stage of construction, that devices “such as netting, metal decking and lifelines, normally are not used during the early stages of construction projects,” and that “it would have been infeasible, even dangerous, to have used any such device.” In Hunt, the defendants adduced “evidence of industry custom” in order to prove “that devices such as scaffolding, nets, safety lines and safety belts were never used on the type of building involved.” In contrast to Zimmer, the Hunt defendants claimed only that such protection was not normally provided, not that it would have been “infeasible” or “even dangerous” to provide such safeguards.

The Zimmer court held that both plaintiffs were entitled to judgment as a matter of law. In Hunt, while “evidence of custom and usage was admissible to determine the standard of care in a negligence context,” such proof could not alter the standard of care dictated by Labor Law §240 inasmuch as “liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage.”

In Zimmer, “the uncontroverted fact that no safety devices were provided” to prevent the plaintiff-worker from falling meant that “a verdict of liability should have been directed in plaintiff’s favor.” The court added: “To determine an owner or contractor’s liability for a violation of section 240 (1) by reference to whether safety devices customarily are used, and, if so, which ones give ‘proper protection’ would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite. This would clearly contravene the legislative purpose of placing ‘ultimate responsibility for safety *** on the owner and general contractor’ (1969 NY Legis. Ann. at 407).”

In the wake of Zimmer, the Appellate Division has repeatedly ruled that the contractors’ failure to provide safety devices to protect the plaintiff-worker from a fall constitutes a statutory violation irrespective of whether “industry custom” dictated that safety devices be provided.3

The Facts in ‘O’Brien’

The facts here are taken from the majority opinion penned by Chief Judge Janet DiFiore. “It had been raining periodically during the day” and the plaintiff headed downstairs to get his rain jacket. In order to do so, he used “a temporary exterior metal staircase.” The stairs were wet.

There was a dispute whether the stairway’s tread was worn. Plaintiff testified that the stairs were “smooth on the edges.” Based upon photographs in the record, the plaintiff’s expert said that the “small round protruding [metal] nubs,” which purportedly provided “limited anti-slip protection” even when new, were worn as a result of “longstanding wear and tear.” He also said that “the stairs were ‘smaller, narrower and steeper than typical stairs’” and that they were “‘not in compliance with good and accepted standards of construction site safety and practice.’”

Defendants countered with expert opinion to the effect that “the staircase was designed for both indoor and outdoor use and was ‘designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” Defendants’ experts also maintained there was “‘no evidence’ that the perforated steel treads had been worn down by foot traffic,” and that the staircase was not unusually small, narrow or steep.

But there was no dispute that the stairs were wet. Nor was there any dispute that plaintiff slipped and fell down the stairs, sustaining injuries.

Was the plaintiff entitled to summary judgment because he slipped from a definitely wet and apparently slippery stairway? Or was there a triable issue as to the adequacy of the “protection?”

Appellate Division

The Appellate Division split four to one. The majority ruled that the experts’ disagreement was irrelevant since “[a] plaintiff is entitled to partial summary judgment on a Section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants’ failure to take mandated safety measures to protect him against an elevation-related risk.”

Court of Appeals

By 4-to-3 vote, the Court of Appeals ruled that there were “questions of fact as to whether the staircase provided adequate protection.” The majority distinguished the case at bar from those “involving ladders or scaffolds that collapse or malfunction for no apparent reason.”

The dissent penned by Judge Jenny Rivera charged that the majority’s ruling “reflect[ed] a misunderstanding of the legislative intent and statutory mandates of Labor Law §240(1).” In the dissenters’ view, “[a] metal outdoor staircase known to be slippery, especially one exposed to rain, is not an appropriate safety device within the meaning of the statute.”

Sea Change or Not?

Did the O’Brien majority intend to effect a sea change in the Labor Law §240 jurisprudence? More specifically, did it intend to overrule Zimmer so as to, (1) now allow the construction industry to set its own safety standards, or (2) now provide that it is a viable defense that “proper protection” was “infeasible” in the circumstances?

The O’Brien majority distinguished Zimmer on the ground that Zimmer was a case in which “‘no safety devices were provided at the worksite’” whereas this was a case in which the experts “differ[ed] as to the adequacy of the device that was provided.” Yet, that raises the question of what, exactly, was the “safety device” that had been provided. Surely, it could not have been the staircase itself since, (1) a staircase is not a safety device, and, (2) such would logically mean that the provision of the very ladder, scaffold or elevating device that was defective would preclude the grant of summary judgment to the plaintiff. So, perhaps the court was referring to the metal nubs.

The majority’s explanation as to the import of industry standards in a §240 case was equally puzzling. Is the rule going forward now to be that, excepting those cases in which the ladder, scaffold or other elevation device collapses, alleged compliance with industry standards automatically raises a question of fact as to the adequacy of the device? If so, that would mean that there will virtually always be a triable issue of fact since defendants will always be able to find an expert to say that whatever was provided (or was not provided) complied with industry standards. That would obviously constitute a very significant departure from prior law.

But that appears not to be what the majority meant. The majority said that “such compliance [with industry standards] would not, in itself, establish the adequacy of a safety device within the meaning of Labor Law §240(1)” but that “we do not read defendants’ expert’s opinion to be so limited.” Such suggests there must be something more than alleged compliance with industry standards to raise an issue of fact as to the adequacy of the “safety device” that had been provided. Here, that “something more” was, apparently, the common sense notion that the subject hazard was, after all, nothing more than exterior steps that were wet when it rained.

Looking Ahead

I think two things are fairly certain. First, until the Court of Appeals clarifies what it meant in O’Brien, defendants will no doubt argue that O’Brien constitutes a drastic departure from prior law and that they can avoid liability, no matter how dangerous or avoidable the condition, merely by presenting expert proof that the condition complied with industry standards and/or the applicable regulations. Second, the court will, whether this year or next, eventually have the opportunity to tell us whether (1) it is now the industry itself that determines how much protection is “proper” or (2) O’Brien was really about exterior stairs and the impossibility of keeping them dry when it rains.


1. O’Brien v. Port Auth. of New York and New Jersey, 2017 N.Y. Slip Op. 02466 (March 30, 2017).

2. 65 N.Y.2d 513 (1985).

3. E.g., Celaj v. Cornell, 144 A.D.3d 590, 591 (1st Dept. 2016) (where the plaintiff fell from a scaffold that lacked railings, plaintiff was entitled to summary judgment; “[d]efendant’s expert’s opinion that the lack of safety railings accorded with industry customs and regulations is irrelevant under Labor Law §240(1)”); Cruz v. Cablevision, 120 A.D.3d 744, 745-46 (2d Dept. 2014) (where “[t]here were no safety lines or guardrails along the perimeter of the roof, and no harnesses or safety lines were provided,” the defense expert’s opinion that it was enough to have a “perimeter warning system” per which a “safety monitor” would warn workers who came close to the roof edge “was insufficient to raise a triable issue of fact as to whether the defendants violated Labor Law §240(1)” inasmuch as Labor Law §240 is “‘a self-executing statute’” that “‘contain[s] its own specific safety measures…regardless of whether there was compliance with federal regulations or general industry standards’”).