New York’s Court of Appeals sided with defendants in three recent decisions in cases alleging violations of New York Labor Law Section 240(1). New York’s Labor Law maintains particularly high standards for defendants that are often difficult to defend against. Section 240(1) imposes strict liability on owners and contractors to provide adequate safety equipment, including scaffolding and ladders, to protect workers against height-related risks and injuries proximately caused by the force of gravity. The recent Court of Appeals decisions highlight defenses that are available to challenge claims brought under New York’s Labor Law Section 240(1).
Bonczar v. American Multi-Cinema, Inc.
The Court of Appeals affirmed the defense verdict in this case where plaintiff climbed up and down a ladder several times without issue, and then fell while descending after the ladder shifted and wobbled. Plaintiff claimed judgment was warranted against defendant premises owner because Section 240(1) imposed a non-delegable duty to ensure safety devices, such as the ladder, were properly placed and used. Defendant argued plaintiff’s own acts or omissions were the “sole proximate cause” of the accident, a complete defense to Section 240(1) claims that requires a showing that there were adequate safety devices available and that plaintiff knew they were available and was expected to use them, but chose not to use the safety devices, and would not have been injured if not for that choice.
At deposition and trial, plaintiff testified he did not know why the ladder moved or whether he checked the ladder’s positioning and locking mechanism. The case was submitted to the jury on whether plaintiff was the sole proximate cause of his accident and if defendant violated Section 240. The jury issued a defense verdict, finding defendant provided proper safety protections, plaintiff failed to check the positioning of the ladder, and the ladder’s improper position was the only substantial factor causing plaintiff’s fall.
Plaintiff moved for a directed verdict and to set aside the verdict as against the weight of the evidence. The trial court denied the motion and the Fourth Department unanimously affirmed. The Court of Appeals granted leave to appeal and affirmed, holding that a rational trier of fact court could have found in defendant’s favor. Plaintiff also sought review of a prior Fourth Department order that had denied plaintiff summary judgment on Section 240(1) due to questions of fact warranting resolution by the jury. The Court of Appeals held it could not review that decision on appeal from the final order, because in that procedural context it could only review orders that “necessarily affect” the final judgment, and the Fourth Department order did not remove any facts or issues from the jury’s consideration. This result emphasizes that though Section 240(1) imposes strict liability, courts will defer resolution of material factual issues to the jury and not disturb its findings.
Cutaia v. Board Of Managers Of The 160/170 Varick Street Condominium
In a 4-3 decision, the Court of Appeals denied summary judgment on Section 240(1) to plaintiff plumber who, after he was electrocuted by exposed wiring, fell from an unsecured and unopened A-frame ladder he had leaned against a wall in order to reach piping. Plaintiff argued the proximate cause of his accident was the owner and contractor’s failure to provide equipment that would have safely allowed him to reach the pipes and prevent him from falling after being electrocuted. The owner and contractor defendants argued that plaintiff’s improper use of the ladder was the sole proximate cause of his accident and that plaintiff failed to meet his prima facie burden of showing the ladder did not provide proper protection.
Plaintiff moved for partial summary judgment and the New York County Supreme Court denied the Section 240(1) component of plaintiff’s motion, holding plaintiff did not show his injuries were caused by a 240(1) violation or his fall, as opposed to the electrical shock. The First Department reversed, holding that under all accounts the accident was caused by gravity-related risks protected by 240(1). The dissenting opinion highlighted the absence of evidence showing that the ladder was defective, and that plaintiff’s testimony could be interpreted to say the electric shock, not the force of gravity, propelled him off the ladder.
The Court of Appeals agreed with the dissent, finding questions of fact precluding summary judgment as to whether the ladder provided proper protection, whether defendants should have furnished additional safety devises, and whether the purportedly inadequate ladder and/or alleged lack of additional safety devices were proximate causes of the accident. The decision is consistent with the Court of Appeals’ decision in Nazario v. 222 Broadway, LLC, 28 N.Y.3d 1054 (2016), which denied plaintiff’s motion for summary judgment on Section 240(1) when plaintiff fell from a properly-used A-frame ladder after being electrocuted.
Healy v. EST Downtown, LLC
The Court of Appeals granted defendant property owner’s motion for summary judgment on Section 240(1) in this case where plaintiff maintenance/repair technician fell from an unsecured ladder he had been standing on to remove a bird’s nest from a gutter above a retail storefront. Plaintiff argued he was engaged in an enumerated activity protected by Section 240(1): the “cleaning” of a commercial property. To determine if a plaintiff was engaged in a “cleaning” activity, New York courts applythe four-factor test set forth in Soto v. J. Crew, Inc., 21 N.Y.3d 562 (2013) (the “Soto factors”), which exclude tasks from statutory protections that:
- Are routine
- Do not require specialized equipment or expertise
- Generally involve insignificant elevation risks
- Are unrelated to ongoing construction, renovation, painting, operation or repair
Defendant argued that removal of a bird’s nest from a gutter is “routine” and not protected by Section 240(1) because the activity is expected to recur with relative frequency as part of the ordinary care of a commercial property.
The Erie County Supreme Court granted plaintiff’s motion for summary judgment on Section 240(1) and denied defendant’s, finding that plaintiff’s removal of the bird’s nest was comparable to “troubleshooting an uncommon malfunction.” The Fourth Department affirmed, finding that the activity was not “routine” for plaintiff, who had never been given this task on the job. The dissenting opinion noted the Soto factors apply to the activity itself as opposed to the plaintiff who performed it, and persuasive authority held that cleaning gutters of debris was not protected by Section 240(1). The Court of Appeals concluded that plaintiff’s work was routine and therefore not protected under Section 240(1). The decision is consistent with cases holding that accidents while performing work remedying common problems are not protected by the statute.
For more detail, consult: Bonczar v. Am. Multi-Cinema, Inc., 2022 NY Slip Op 02835 (Apr. 28, 2022), Cutaia v. The Bd. of Mgrs. of the 160/170 Varick St. Condo., 2022 NY Slip Op 02834 (Apr. 28, 2022), and Healy v. EST Downtown, LLC, 2022 NY Slip Op 02836 (Apr. 28, 2022).
Key Takeaway
The particular activity plaintiff was engaged in at the time of the accident may not be protected by the statute. Plaintiff’s testimony regarding precautions he or she may have failed to take may demonstrate plaintiff’s conduct, as opposed to defendants’, may have been the proximate cause of the accident. In all cases, defendants’ provision of adequate ladders and other safety devices may disprove alleged Labor Law violations.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.
