Kevin G. Faley
*Originally published in the
New York Law Journal
February 22, 2010

On Dec. 17, 2009 the New York Court of Appeals issued its decision in Runner v. New York Stock Exchange,1 which dealt with yet another application of New York Labor Law 240(1) to an injured worker. In its decision, the Court once again reminded us, as it does from time to time, that the most important question is one of gravity; or as the Court put it, the "single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against the risk arising from a physically significant elevation differential."2

Over the years, the Court of Appeals and the appellate divisions have dealt with thousands of claims invoking the protection of Labor Law 240(1). As the courts examine these very fact-driven cases against the back-drop of this well-worn statute, they have created not a bright line rule on what is or is not a 240(1) claim, but rather a line of varying shades of gray.

Attorneys, as strong adversaries for their clients, measure their cases against this pattern and not surprisingly tweak them and the Court's language to fit into this design. The result is a legal version of telephone where the pronouncements by the Court of Appeals, after they pass through the appellate and trial courts and are dissected by plaintiffs and defense attorneys, do not quite match up to their original intent.

Further, the Court of Appeals, on more than one occasion after being confronted with a turn of one of its phrases, has had to take the opportunity to attempt to "set the record straight" and declared that its earlier decisions did not foreclose a further liability scenario that did not occur to it at that time.

In decisions over the last 20 years, the Court of Appeals, in offering us further clarifications on its opinions under the Labor Law, has usually restricted the reach of 240(1). However, in the Runner case, the Court's "clarification" extended 240(1)'s grasp with the result that Runner will fall on the plus side of the column for plaintiffs' attorneys.

A 'Clarifying' Case From 2003

Most of the recent Labor Law 240(1) case law relates to the Blake case, a clarifying decision of major proportions.

In the 2003 Court of Appeals case of Blake v. Neighborhood Housing Services of New York City Inc., 1 N.Y.3d 280, 77 N.Y.S.2d 44 (2003),3 the plaintiff had set up an extension ladder against a house and began scraping rust from a window. The ladder was steady, had rubber shoes or cleats and was in proper working condition. When the plaintiff began performing his work, the upper portion of the ladder retracted, the plaintiff fell and his ankle got caught between the extension of the ladder and the mainframe, causing him to fracture his ankle. Apparently, he had failed to lock the extension clips on the ladder.

The plaintiff brought a claim under 240(1) of the Labor Law which provides as follows:

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 caused to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, 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.4

This statute has been interpreted to hold that an injured worker may recover if an owner or general contractor does not provide proper safety devices to prevent a gravity related accident and where the accident is the proximate cause of an improper or nonexistent safety device.

It applies to "falling worker" cases where a worker fell from a height and was injured because of the failure to provide a proper protective device, such as a faulty ladder and to falling object cases, where a worker was injured by an object that was improperly secured or hoisted from above (keep this in mind when we discuss Runner below).5

In Blake, the plaintiff's argument was simple. The ladder was not "placed or operated" to give proper protection to the worker; the accident was a result of a fall ("gravity related"); and a violation of the statute results in absolute liability.

The Court of Appeals said, essentially, not so fast. The Court noted that while it had in the past used the words "absolute liability" and "strict liability," it really did not mean that liability was truly "strict" or "absolute" as those terms were defined in other areas of the law. The Court said that Labor Law 240(1) liability is contingent on a statutory violation and proximate cause and then when only those elements are demonstrated is the liability truly strict or absolute and the culpable conduct of a worker evaporates. The Court noted, somewhat defensively, that it never suggested otherwise.6

The Court also noted that the use of the terms strict or absolute liability "may have given rise to a mistaken belief that a fall from a scaffold or ladder, in and of itself, resulted in an award of damages to the injured party."7 But, the Court insisted, this was never our intention.

Further Elucidation

In the 2007 case of Broggy v. Rockefeller Group Inc.,8 the Court of Appeals once again clarified previous interpretations of Labor Law 240(1).

In Broggy, the plaintiff was washing the inside of a building's eighth floor windows while his co-workers washed their exterior portion. While the windows reached approximately nine or 10 feet above the floor, with the use of his window washing tools, the plaintiff was able to clean these windows without using a ladder or platform to reach the top.

The plaintiff and his co-workers eventually arrived in a room where there were three windows, one of which had a desk in front of it. The plaintiff climbed on top of the desk to clean the interior surface of the window and when the plaintiff's co-worker, who was cleaning the outside of the window, signaled to the plaintiff that he wanted to come in, the plaintiff lifted the window's bottom sash. Instead of the window remaining open, however, the bottom sash slammed down and when the plaintiff tried to move his foot out of the way, he lost his balance and fell off the desk onto the floor, sustaining an injury.

The Court noted that "cleaning" was a protected activity under 240(1) and that interior window washing could fall under the Labor Law if it involved an elevation-related risk. However, the Court noted that liability "turns on whether a particular window washing task meets an elevation related risk of the kind that the safety devices listed in 240(1) protect against." The Court noted that to recover under 240(1) the plaintiff "must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows" and summary judgment was proper because the plaintiff "did not need protection from the effects of gravity."9

Again, the Court reminded us, look at the role that gravity played in the accident. And, if the accident was gravity-related, was it a result of the lack of a proper protective device? In Blake and Bragg, both "falling worker" cases, gravity certainly played a role in the accident, but the Court found that safety devices were either furnished or not necessary.

Falling Object Cases

Section 240(1) of the Labor Law also covers a worker who is injured by an object falling from an elevated work surface.

In the seminal case on falling objects, Narducci v. Manhasset Bay Associates,10 the Court noted that "a plaintiff must show more than simply that an object fell causing injury to a worker." A plaintiff must show that "the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute."11 In other words, there must be a gravity-related accident.

The implicit understanding was that the object must have fallen from a height above and onto the plaintiff. Indeed, Narducci cited favorably the Court of Appeals' decision in Curtis-Ross Cutters v. Hydro Electric Co.,12 in which the Court held that the special hazards that Labor Law 240(1) guard against, are limited to such specific gravity related accidents as falling from a height or "being struck by a falling object that was improperly hoisted or inadequately secured."13(Emphasis supplied).

Which brings us to Runner.

The 'Runner' Decision

In Runner the plaintiff and several coworkers were moving a large wheel of wire, weighing some 800 pounds, down a set of about four stairs.

To prevent the reel from rolling freely down the stairs, the workers tied one end of a 10-foot length of the rope to the reel and then wrapped the rope around a metal bar, which was placed horizontally across the door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two other co-workers began to pull the reel down the stairs.

As the reel descended, it pulled the plaintiff and his fellow workers toward the metal bar. The rope was ineffective in regulating the rate of the reel's descent and the plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it.

The Court, once again, had some explaining to do in light of its prior holdings in Ross and Narducci and the years of decisions on falling object cases citing them as authoritative. It was undisputed that (1) the plaintiff was not struck by an object; and that (2) the object was not being hoisted or secured from above.

Quite properly, the defendants pointed out that in Ross and Narducci the "falling object" must strike the worker and must be improperly hoisted or unsecured from a height above. The Court explained that "referring to these familiar scenarios in which 240(1) liability may arise, neither decision purports exhaustively to define the statute's protective reach. Rather, the rule needs to be found in the language from Ross following closely where the Court elaborated more generally that Labor Law 240(1) was designed to prevent 'those types of acts in which [safety devices] proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.'"14(Emphasis supplied).

The Court then did away with the requirement that the worker and the object must make contact, stating that "the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry one which may be answered in the affirmative even in situations where the object does not fall on the worker is rather whether the harm flows directly from the application of the force of gravity to the object."15

The Court stated that "we have not, until now, addressed the factual progression, which, although not following one of the two scenarios defendants would have us deem exhaustive, nonetheless, involves an injury directly attributable to a risk posed by a physically significant elevation differential."16

Accordingly, the Court of Appeals has once again had to step into the Labor Law arena and clarify its Labor Law lexicon.

In the cases prior to Runner, the Court's interpretations on the Labor Law constricted its meaning, usually by relying upon the necessity of the plaintiff being exposed to a gravity related incident. For example, in Broggy, even though the plaintiff fell from a height, he need not have exposed himself to that risk. In Blake, even though the ladder retracted and the plaintiff fell because of the effects of gravity, the proper ladder was provided and the plaintiff failed to lock the extension clips. And in Narducci, the "falling object" was at the same level as the plaintiff, did not fall from a height above the plaintiff and was not in the process of being hoisted or secured.

However, in Runner, the gravity element of the Labor Law resulted in an expanded reading of falling object cases to instances where it is no longer required that the object either fall from a height above the plaintiff or that the object actually strike plaintiff. For the Court of Appeals, the gravitational effect of the Labor Law is the predominant force.

Trickle Down Effect

Already the trickle down effect of Runner has been demonstrated. In a decision from the Supreme Court, Bronx County, which appeared in the New York Law Journal on Jan. 14, 2010, Judge Howard R. Silver cited Runner in support of his decision granting summary judgment on Labor Law 240(1) to an injured worker.

Although the case, Massa v. NYC Economic Development Corp., did not involve a falling worker, Judge Silver quoted with approval the language of Runner, noting that the Court of Appeals stated that "this statute's protection has been construed to be less wide that its text would indicate." Judge Silver explained further:

The agreed purpose of this strict liability statute [did he just say "strict liability?"] is to protect construction workers not from routine workplace risks, but from pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk... Labor Law 240(1) was designed to prevent those type [sic] of accidents which the [protective device] proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

And so begins another round in the continuing interpretation of Labor Law 240(1). Rest assured that it will not be long before the gravitational pull of the statute draws the Court into issuing yet another clarification for us to consider.

KEVIN G. FALEY is a partner with Morris Duffy Alonso & Faley.

Endnotes:

  1. 2009 WL 4840213, N.Y. Slip Op 09310 (2009).
  3. 1 N.Y.3d 280, 77 N.Y.S.2d 44 (2003).
  4. McKinney'sLabor Law 240(1).
  5. 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991); 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993); 86 N.S.2s 487,634 N.Y.S.2d 35 (1995).
  6. supra, 1 N.Y.3d 280, 288, 771 N.Y.S.2d 484, 488 (2003).
  7. 1 N.Y.3d at 288, 771 N.Y.S.2d at 488.
  8. 8 N.Y.3d 675, 839 N.Y.S.2d 714 (2007).
  9. 8 N.Y.3d at 681, 839 N.Y.S.2d at 714.
  10. 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001).
  11. 96 N.Y.2d 259 at 267, 727 N.Y.S.2d at 41.
  12. 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993).
  13. 81 N.Y.2d at 501, 601 N.Y.S.2d at 54.
  14. 2009 WL 4840213.
  15. lbid.
  16. lbid.