Silhouette of cranes at construction site.

Labor Law §240 is a singular statute [see note 1] which generates an enormous number of new appellate cases every year many of which are characterized by sharply divided opinions and reversals.

In the words of Judge Richard Wallach of the First Department in 2001, “few legislative enactments have taxed the courts more” and “efforts to fashion overarching rules have often failed.” Hargobin v. K.A.F.C.I., 282 A.D.2d 31, 32 (1st Dept. 2001).

Clearly, since the statute was enacted over a hundred years ago (see 1885 N.Y. Laws ch. 314), courts at all levels have struggled, and frequently failed, to apply the law coherently.

The result has been an ever growing body of case law that lacks consistency [see note 2] and increasingly calls into question whether the purported intent of §240 to protect workers from the hazards of elevation related risks and promote responsibility for safety can really be advanced by the statute. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520 (1985) (quoting Koenig v. Patrick Constr., 298 N.Y. 313, 318 (1948)).

‘Hoyos’ Decision

Hoyos v. NY-1095 Ave. of the Ams., 2017 NY Slip Op 08717, exemplifies the muddle that is the current state of the law.

In Hoyos, a 3-2 decision issued Dec. 14, 2017, the First Department addressed a plethora of recurring, largely unresolved issues under §240.

The facts in Hoyos are as straightforward as they are common place.

On the date of loss, Mr. Hoyos, a painter reporting in to work, stood on line with other construction workers to sign in to a security log on an elevated permanent loading dock of a street level service entrance to a 42 story commercial office building, 10 upper floors of which were undergoing renovation. The loading dock was by varying accounts either four or five feet high. By no account was the dock under construction or was painting, or any other any construction related activity, taking place on the dock.

Mr. Hoyos took half a step backward to make room for an unidentified person and fell off the dock. According to the building manager railings on the dock would have interfered with deliveries.

In a long opinion, the majority found that the plaintiff was “so employed” in protected activity and that the owner failed to provide him with adequate protection giving rise to liability under §240.

In a longer dissent, Justice Peter Tom raised numerous questions not least of which was “what kind of protective device proscribed under section 240(1) could be provided to a worker injured while waiting on a loading dock to sign in … ?”

Here We Go Again

To condense the opinions in Hoyos a bit, the justices in the majority and dissent discussed the following frequently recurring issues under §240:

(1) The importance of “workplace realities” to the application of the statute;

(2) The nature of protected activity including the meaning of “so employed,” a temporal requirement to enumerated activity and the spatial reach of a “construction site”;

(3) The types of devices required including whether the dock was a safety device;

(4) De minimis height differentials;

(5) Permanent structures;

(6) Loading and unloading hazards;

(7) The use of experts; and

(8) The worker’s own actions as the sole proximate cause of the loss.

Workplace realities—Perhaps most instructive about Hoyos is that both the majority and dissent argued that jobsite realities supported their positions and decisively so.

The Court of Appeals decision on the role of jobsite reality have been widely disparate and proven difficult to reconcile.

For example, in Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523, (1985), the court stated that “the question of circumstantial reasonableness is irrelevant” and custom in the trade “irrelevant.” Moreover, that the state of building art has not yet devised an appropriate device does not relieve liability under §240. Id. at 524.

However, in Salazar v. Novalex Contr., 18 N.Y.3d 134, 140 (2011), the Court of Appeals stated that §240 should be “construed with a common sense approach to the realities of the workplace.” In Salazar, the court dismissed §240 finding it “illogical,” “impractical and contrary to the very work at hand” to have a protective device over the trench the plaintiff fell into where the very goal of his task was to fill the hole with concrete. Id.

Realities may be subjective but the role of jobsite reality, even if agreed upon by the parties, is clearly still a disputed area.

So employed—Section 240 states that it applies to workers “so employed” in the seven enumerated activities but an enormous number of appellate decisions involve losses that occur during preparations, inspections, work interruptions, completed operations and off-hours. See Julian D. Ehrlich, Construction Site Personal Injury Litigation: Second Edition, Chapter [4.5] B. New York State Bar Association (2d Ed. 2013) (hereinafter Construction Site).

While the majority in Hoyos opined that the “plaintiff was unquestionably engaged in protected activity,” the dissent found “[I]n no reading of the section could a worker merely waiting to sign in to a building be found engaged in enumerated activity.” Furthermore, dissenting Justice Tom suggested a standard of “limiting the sections coverage to the actual location where the enumerated activities are actually taking place is a common sense reasonable interpretation.”

Interestingly, both sides agreed that the question of whether plaintiff was “so employed” was a matter of law not fact for a jury.

In addition, to temporal questions, as with the court in Hoyos, other appellate cases have struggled with setting boundaries as to the spatial reach of the law.

Construction site—As noted by the majority in Hoyos, “construction site” is not defined in the statute. In fact, the words “construction site” do not appear in the language of the law at all.

The Court of Appeals in Dahar v. Holland Ladder & Manufacturing Co., 18 N.Y.3d 521 (2012), dismissed §240 for a loss at an off-site factory but noted the law does not only apply to construction sites. Nonetheless, in decisions after Dahar, §240 was found not to apply at a staging area a “few blocks away” (Bessa v. Anflo, 148 A.D.3d 974 (2d Dept. 2017)) but did apply to a steel fabrication yard eight miles from the jobsite (Gerrish v. 56 Leonard, 147 A.D.3d 511 (1st Dept. 2017)).

Future disagreements on the geographic reach of the law will surely follow.

Statutory devices—Justice Tom’s question as what device could have been used in Hoyos also reveals a core challenge of §240. The law is to be liberally construed but includes the catchall phrase “and other devices” after enumerating 11 specific devices.

In recognizing this tension in §240, the court in Miranda v. Norstar, 79 A.D.3d 42 (3d Dept. 2010), stated “[W]here statutory language to be construed is a general catchall term that follows a list of more specific words, the precept of ejusdem generis as a construction guide is appropriate—that is, words constituting general language … are not to be given the most expansive meaning possible, but are held to apply only to the same general kind or class as those specifically mentioned.”

Nonetheless, many decisions have grappled with what constitutes “other devices.” See Construction Site Chapter [4.29] 1.

Height differentials—Whether the dock in Hoyos was of de mininus height was in dispute and, again, is attributable to a lack of statutory definition of what constitutes a fall. As a result and as commentators have noted, there is a relatively new focus in case law away from any height requirement at all and instead to the weight of objects. See Construction Site Personal Chapter [4.29] 1.

In addition, Hoyos, touched more briefly on other frequently recurring issues where §240 has been dismissed in other settings including falls from permanent structures (see Construction Site Personal Chapter [4.29] 4), falls in areas with active truck loading and unloading (see Julian D. Ehrlich, “Falls, Trucks, and Labor Law §240: Where Are We Going?” N.Y.L.J., March 22, 2017); Dalaba v. City of Schenectady, 61 A.D.3d 1151 (3d Dep’t 2009) citing Long v. Forest-Felhaber, 55 N.Y.3d 154 (1982); Dalaba v. City of Schenectady, 61 A.D.3d 1151 (3d Dep’t 2009) citing Long v. Forest-Felhaber, 55 N.Y.3d 154 (1982)), experts and plaintiff’s acts as the sole cause of the accident which has generated an huge amount of case law.

Of course there are many other hotly contested issues under §240 beyond those addressed in Hoyos.

Conclusion

The Labor Law §240 scheme dates back to a time before worker safety was governed by current rules and before construction was such a highly regulated industry.

Now, OSHA regulations are comprehensive, regularly updated, and contain specific state-of-the-art standards relating to fall protection. In contrast, the Labor Law as applied by the courts is arguably as arbitrary as it is harsh with its all-or-nothing results. Yet, OSHA continues to be irrelevant to Labor Law analysis. [see note 3]

Remarkably, courts are continually divided as to role of jobsite realities and feasibility under Labor Law §240. Brian J. Shoot, “Labor Law §240(1); The Feasibility Issue,” N.Y.L.J. Nov. 25, 2015. Decisions alternatively either ignore these realities as irrelevant or consider them to be of great, even decisive, importance. The effect has been a profound disconnect between jobsite realities and the standard in the courtroom.

Every word of the law has been parsed and argued over for years. Courts have read words into statute like absolute and vicarious liability which has not been without controversy to the point of drawing calls for repeal or amendment. Kenneth Lovett, “Group Seeking to Repeal N.Y. Scaffold Law that Hikes Insurance Costs for Rail Tunnel Plan Under Hudson River,” New York Daily News, Oct. 17, 2017; Adam Morey, “Scaffold Law Is a Drain on State’s Economy, The Buffalo News,” Oct. 7, 2017; Fredrick Kunkle, “Tear Down N.Y.’s Scaffold Law to Rebuild Infrastructure, Group Says, No So Fast, A Law Clinic Replies,” The Washington Post, Oct. 26, 2017; Tom Stebbins, “The Case For Scaffold Law Reform,” Construction Connections, September 2017; Casey Seiler, “McDonald Backs Scaffold Law Reform Legislation,” Albany Times Union Feb. 16, 2017. The result is a voluminous, cacophonous body of case law.

The very simple loss facts in Hoyos generated so many fundamental questions of application again demonstrating that after all these years §240 remains inherently problematic.

Moreover, the cumulative effect of conflicting case law over years reflects how at best that §240 is deeply unsettled and at worst how the law is so divorced from any reality as to be arguably fundamentally flawed, unworkable and outdated so as to provide no meaningful direction to workers, owners or contractors.

Can a law that fails to provide clear guidance and fails to even purport to apply to the real world really advance safety?

Endnotes:

[1] N.Y. Labor Law §240(1) provides, in pertinent part:

Scaffolding and other devices for use of employees.

1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

[2] See for example, “Consistency on Sole Proximate Cause Falls Flat,” by Julian D. Ehrlich, N.Y.L.J., Sept. 14, 2015; Andrew Zajac and James K. O’Sullivan, “What Exactly Is a Falling Object Anyway?,” The Defendant: The Journal of the Defense Association of New York, Winter 2014.

[3] Dalaba v. City of Schenectady, 61 A.D.3d 1151 (3d Dep’t 2009) citing Long v. Forest-Felhaber, 55 N.Y.3d 154 (1982).

Julian D. Ehrlich is senior vice president claims with Aon Construction Services Group in New York. Joseph W. Sands is senior trial counsel with White & McSpeddon in New York.