The Court of Appeals is frequently called upon to make rulings concerning the scope and application of Labor Law §240, the so-called scaffold statute. It sometimes explains the grounds for its determinations in great detail. This column concerns a recent case in which the court went in, well, a different direction.

The Court of Appeals’ memorandum opinion in Valente v. Lend Lease (U.S.) Constr. LMB, 29 N.Y.3d 1104 (2017) concerned two issues that often arise in application of Labor Law §240: (1) whether the subject accident was sufficiently “elevation-related” to trigger the statute’s protections and (2) whether a jury could find that the plaintiff-worker’s own negligence was the “sole proximate cause” of the accident. Yet, one cannot fully appreciate the nature of either of the court’s rulings absent some familiarity with the lower court rulings and the parties’ respective contentions, matters on which the Court of Appeals’ opinion sheds little light. It also helps to know something about the way accidents involving ramps have historically been treated under the statute.

Regarding Ramps

Prior to the Court of Appeals’ 2009 ruling in Runner v. New York Stock Exh., 13 N.Y.3d 599, 603 (2009)—wherein the court fashioned “a single decisive question” to govern the elevation prerequisite of Labor Law §240—the rules concerning accidents that occurred on ramps were a bit muddled.

While the Court of Appeals had not addressed the subject, quite a few Appellate Division decisions turned not on the nature or degree of the hazard of falling or being struck by a falling object, but instead on the manner in which the ramp was being used. If the worker was using a ramp as a work platform, and therefore as a substitute for a ladder, scaffold or other elevating device, the statute could apply. If the worker was instead using the ramp to go from point A to point B, then the statute probably did not apply.[1]

But the key word of the last sentence is “probably.” There was also authority for the proposition that the statute could apply if the ramp was the only means by which the worker could reach or leave an elevated area.[2] There were also instances in which the accident did not appear to fit into either of the “acceptable” categories but was nonetheless deemed within the statute’s scope, ostensibly because of the sheer extent of the gravity-related hazard.[3] That consideration also seemed significant in some cases in which the subject ramp collapsed, in that courts would sometimes focus on whether the height differential was sufficiently concerning to trigger the statute’s protections.[4]

There was also a case in which the Appellate Division distinguished falling from merely sliding down a ramp, such that a seven-foot slide was not deemed within the statute’s scope.[5]

That, however, was pre-Runner. In Runner, the court announced that the “single decisive question” concerning the elevation prerequisite is “whether the plaintiff’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential.” That would logically suggest that, going forward, it should not matter whether the ramp was used as a substitute for a scaffold but should matter whether the elevation differential was sufficiently “significant” to create an appreciable risk of injury.

And, indeed, that seems to have been the key concern in the Appellate Division’s post-Runner ramp rulings. The Appellate Division deemed the statute implicated where the height differential and/or the weight of the object that was being transported from one level to another created a significant risk of injury.[6] The Appellate Division deemed the statute inapplicable in a case in which the accident occurred on a ramp but while a cart was being pushed up a ramp, because the cart’s movement was not caused by “the effects of gravity.”[7]

However, none of those rulings concerning ramp accidents, whether pre-Runner or post-Runner, were rendered by the Court of Appeals.

Facts in ‘Valente’, Some of Which Were in Dispute

The subject accident occurred during the course of the construction of a Manhattan building that would be “slightly shorter” than the Chrysler building. Plaintiff Frank Valente, a carpenter, was injured while attempting to use a makeshift ramp to access a kind of exterior scaffolding known as a Perry unit.

It was undisputed that the Perry unit was situated 73 floors above the pavement. Valente himself set up two planks that together comprised the makeshift ramp that spanned the distance from the building to the scaffolding. Because the Perry unit was some five feet lower than the building end of the ramp, the ramp descended at an approximately 45 degrees from building to scaffold.

Significantly, Valente did not fall off the ramp (in which event he would surely have not survived to be a plaintiff). Rather, because one or both planks were greasy, he slid down the planks and his foot ultimately became lodged in an I-beam of the Perry unit, causing him to fall to the surface of the Perry unit.

The parties disputed why Valente set up the planks as he did, and whether he had any viable alternative. Defendants construed the testimony of plaintiff’s foreman—who, as defendants repeatedly noted in their motion papers and briefs, was also plaintiff’s brother—as establishing that there was “an available ramp” that was equipped with “safety railings, toe boards and nets.” Plaintiff’s position was that the foreman had never said that the ramp was then available, and that it had in fact been removed from the vicinity prior to the subject occurrence.

Defendants also urged that Valente did not have to use the two greasy planks he used, and that there were other, safer components that Valente could have used to construct the ramp. Valente countered that there was no time to do so because he needed to reach the Perry unit quickly in order to meet an approaching crane.

With respect to the question of whether the case involved an elevation-related hazard within the meaning of Labor Law §240, defendants argued that “the plaintiffs here attempt to turn a simple slip and fall on a ramp into a Labor Law §240(1) case” and that “application of Labor Law §240(1) to the facts of this case would stretch legislative interpretation beyond recognition.” Defendants emphasized that “plaintiff did not fall from the ramp, he fell on the ramp.” They contended that “[s]lipping or sliding, while walking along a ramp, is not an elevation hazard that Labor Law §240(1) is applicable to.” In response, plaintiffs did not deny that Valente slid down the ramp but noted that the Perry unit was “located 73 stories above the ground” and that it was “irrefutable that Mr. Valente’s injuries flowed directly from the forces of gravity.”

Lower Court Rulings

The Supreme Court wisely observed that “all of these 240, subdivision 1, cases are extraordinarily fact-specific.” That stated, the xourt ruled that the case at bar involved “an elevation risk.” It further ruled that the plaintiff’s conduct could not be deemed the sole proximate cause of the accident given that liability was “predicated on the lack of having a suitable ramp.” It accordingly awarded plaintiff summary judgment.

The Appellate Division unanimously affirmed, holding, (1) the plaintiff’s fall while using “a makeshift ramp to descend five feet from the top of a building to a scaffold was ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential [quoting Runner]’” and (2) defendants had “failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident” inasmuch as the proof established that the only ramp that was then available was not long enough to reach the scaffolding and that plaintiff did not have time to build a ramp “before meeting the crane that was approaching to assist in dismantling the scaffold.”

Court of Appeals’ Rulings

The Court of Appeals resolved the issue concerning the applicability of the statute in a single sentence, stating, “[w]e agree with the Appellate Division that the fall of Frank Valente (plaintiff) was the result of an elevation-related risk for which Labor Law §240(1) provides protection.”

Thus, while one could not know this from the Court of Appeals’ ruling itself (which says next to nothing about the manner in which the subject accident occurred), Valente holds that the statute can apply to an accident in which the worker merely slides down a ramp (as opposed to falling from a ramp). The ruling also impliedly rejects the pre-Runner rulings that limited application to accidents in which the ramp was being used as a work platform.

But why, in what sense, did the accident present an elevation-related risk? Did the bare fact that plaintiff slid five feet down a 45° incline present “an elevation-related risk”? Or did it also matter that the ramp on which plaintiff slipped was suspended more than 70 stories high and that the plaintiff could have fallen to the pavement below (even though that is not what occurred)? The Court of Appeals did not say. Neither did the Appellate Division.

While agreeing with the lower courts that the plaintiff’s accident “was the result of an elevation-related risk for which Labor Law §240(1) provides protection,” the Court of Appeals also found that the proof, when construed in the defendants’ favor, presented a triable issue of whether plaintiff’s conduct was the “sole proximate cause” of his accident, stating:

… there is a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law §240 (1), was the sole proximate cause of his accident” [citation omitted]. Viewing the facts in the light most favorable to defendants, as we must [citation omitted], we conclude that plaintiff’s foreman arguably provided conflicting accounts of whether plaintiff had “adequate safety devices available,” whether “he knew both that they were available and that he was expected to use them,” whether “he chose for no good reason not to do so,” and whether “had he not made that choice he would not have been injured” [citation omitted].

Here too, there is more than meets the eye, but only if one has scanned through the Record and is thus aware that the defendants advanced two different “sole proximate cause” arguments, only one of which turned on the foreman’s “arguably … conflicting accounts.” Defendants had argued that plaintiff was negligent in, (1) not using an existent ramp that the foreman purportedly said was available, and, (2) in the manner in which plaintiff constructed the “makeshift” ramp in issue (more specifically, that he used “greasy” wood instead of other, purportedly available wood).

Since the viability of the “sole proximate cause” defense turned, the court said, upon the foreman’s “arguably … conflicting accounts,” and since the foreman’s “arguably … conflicting accounts” related solely to the availability of the existent, safer ramp, it would seem that the court thus impliedly indicated that the defendants’ back-up argument (i.e., that the plaintiff should have built a better ramp) did not constitute a legally viable defense. Yet, while there is authority quite apart from the ruling in Valente for the proposition that a worker’s alleged negligence in failing to construct (as opposed to failing to use) a better elevating device cannot bar his or her recovery,[8] one suspects that Valente will not be the case cited for that proposition.

Endnotes:

[1] Donohue v. CJAM Associates, 22 A.D.3d 710, 712 (2d Dept. 2005) (the statute did not apply because the ramp “was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work” and was instead “used as a passageway for laborers at the worksite”); Paul v. Ryan Homes, Inc., 5 A.D.3d 58, 60 (4th Dept. 2004) (stating that Labor Law §240 can apply where “the plank served as the functional equivalent of a scaffold, ladder or other device enumerated in the statute” but does not apply where “the plank was used as a passageway or stairway”); D’Antonio v. 1251 Americas Associates, 284 A.D.2d 204, 205 (1st Dept. 2001) (where plaintiff fell “while installing anchors or hooks into a wall” and it was uncontested that “plaintiff did not need the elevation provided by the ramp/platform to perform his task,” “the motion court properly dismissed plaintiff’s Labor Law §240(1) claim”).

[2] Reisch v. Amadori Construction Co., 273 A.D.2d 855, 856 (4th Dept. 2000) (where during the course of a bridge reconstruction project plaintiff “slipped and fell off a crude plank ramp leading from a bridge abutment to ground level,” the statute applied because “[t]he ramp served the function of a ladder, permitting plaintiff to climb onto the bridge abutment from ground level” and it was “undisputed that the only other access to the bridge that day was a similar ramp at the far side of the bridge located a 10-mile drive away”).

[3] E.g., McCann v. Central Synagogue, 280 A.D.2d 298, 299-300 (1st Dept. 2001) (where plaintiff was injured while attempting “in a Sisyphean effort” to push a bin that was full of debris up a 10-foot long ramp, and where the accident occurred when the bin tilted and then fell from the ramp, which lacked barricades, the issue was “not whether the ramp itself [was] a safety device, but whether it was constructed and maintained with adequate safety devices, such as railings or safety curbs”; since it plainly was not, the statute was violated).

[4] For example, the statute was deemed applicable in a case in which the ramp was four to five feet high (Missico v. Tops Markets, Inc., 305 A.D.2d 1052, 1052-53 (4th Dept. 2003)) and inapplicable where the height differential from bottom to top “was at most twelve to eighteen inches” (Torkel v. NYU Hospitals Center, 63 A.D.3d 587, 590 (1st Dep’t 2009)).

[5] Cummings v. I. & O.A. Slutsky, Inc., 304 A.D.2d 860, 861 (3d Dept. 2003) (where decedent “was approximately seven feet up the ramp, walking in a southerly direction, when he slipped, fell to the ramp deck and slid down the incline to the shoulder of the road,” the statute did not apply because decedent “did not fall from an elevated work site … The mere fact that the ramp upon which decedent was walking was on an incline, resulting in his sliding some seven feet to the shoulder of the road, does not bring this case within the ambit of the elevation-related hazards contemplated by Labor Law §240(1)”).

[6] Kandatyan v. 400 Fifth Realty, 155 A.D.3d 848 (2d Dept. 2017) (where plaintiff was pushing a loaded dolly up a temporary plywood ramp, “[t]he base of the ramp was approximately 4 to 5 feet off the ground” and the dolly first stopped and then rolled backwards, causing plaintiff “to hit an adjacent concrete wall and fall onto the ramp,” “[c]ontrary to the defendants’ contentions, the elevation differential between the worker and the loaded dolly while on a four-to-five-foot-high ramp ‘cannot be viewed as de minimis, particularly given the weight of the object [more than 1,000 pounds] and the amount of force it was capable of generating”); Landi v. SDS William Street, 146 A.D.3d 33, 35-38 (1st Dept. 2016) (where plaintiff was attempting to maneuver a pallet jack loaded with cinder blocks down an approximately 30-foot long ramp, and where the pallet jack slipped out of control on the wet ramp and thus ran over plaintiff’s right foot, the statute applied since, “contrary to defendants’ contention, plaintiff’s accident was not due solely to a hydroplaning piece of equipment; it was due to the slide down a slope of a heavy piece of hydroplaning equipment whose traction and braking mechanism was not up to the task”); Aramburu v. Midtown West B, 126 A.D.3d 498 (1st Dept. 2015) (where plaintiff was injured when he and a co-worker “were allegedly each using both hands to guide a heavy reel of wire covered in cardboard down a plywood ramp with an incline starting at four feet,” when plaintiff “slipped and fell on a two-foot circular patch of ice on the ramp, landing on the ramp, causing his coworker to lose control of the reel, which consequently rolled over plaintiff’s shoulder and neck,” “plaintiff established that his accident was a ‘direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ [quoting Runner]”); Ervin v. Consolidated Edison of New York, 93 A.D.3d 485, 485 (1st Dept. 2012) (where plaintiff was descending a ramp that led from the top of a three-foot high wall down to ground level and where the structure collapsed causing plaintiff to fall, it was “irrelevant whether the structure constituted a staircase, ramp, or passageway since it was a safety device that failed to afford him proper protection from a gravity-related risk” and plaintiff was “entitled to judgment as a matter of law on his claim pursuant to Labor Law §240(1)”).

[7] Sinkaus v. Regional Scaffolding & Hoisting Co., 71 A.D.3d 478, 479 (1st Dept. 2010) (the statute did not apply because “the accident was not caused by the effects of gravity” inasmuch as “the cart rolled over plaintiff’s foot while his co-workers were pushing it back up the ramp, that is, while the cart was ascending”).

[8] Such was the subject of Mr. Shoot’s last column in this publication.

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McGrath & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers. Susan M. Jaffe was formerly associated with Sullivan Papain and is now a solo practitioner specializing in appellate practice.