The Elevation of the Expert

Andrea M. Alonso and Kevin G. Faley, New York Law Journal

May 25, 2017

In O'Brien, a divided New York Court of Appeals focuses on expert opinions to determine the adequacy of safety devices under Labor Law §240(1).

Labor Law §240(1) (the Scaffold Law) imposes strict liability on owners and general contractors for injuries incurred by workers who suffer a gravity-related accident. The injury must be the result of a significant physical height differential between the worker and the work being done and the application of gravity on either the worker or an object that is the proximate cause of the accident.

On March 30, 2017, the Court of Appeals decided O'Brien v. Port Authority of New York & New Jersey, 2017 NY Slip Op. 02466 (N.Y. 2017), a case where two experts disagreed on whether a temporary metal staircase or scaffold—a safety device under the Labor Law—provided proper protection as required by the statute. In reversing the award by the appellate division for plaintiff on summary judgment, the court held that the defendants' expert affidavit, in which he stated that the staircase provided adequate protection, was sufficient to create a question of fact.

'Blake'

The O'Brien decision seems to be an extension of the Court of Appeals case Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280 (2003), but with a significant difference. In Blake, the court reiterated that liability under the Scaffold Law is contingent upon a finding of a statutory violation that proximately caused plaintiff's injury. Accordingly, where an employee is provided with adequate safety equipment, the "sole proximate cause" of the accident must be the plaintiff's own conduct. Sole proximate cause breaks down into two distinct areas: worker misuse of a proper safety device, as in Blake, or the refusal to use available safety equipment. The burden to prove that plaintiff was the sole proximate cause of the accident rests with the defendants.

Blake also noted that in the context of the Scaffold Law, "strict" liability did not mean the same thing as in other areas of the law, with liability actually contingent on a statutory violation and proximate cause. It noted that a fall from a scaffold or ladder does not, in and of itself, result in an award of damages to the injured party. And, where a plaintiff is the sole proximate cause of his own injuries, there is no liability at all.

In O'Brien, the court was faced with deciding whether a temporary scaffold or staircase provided proper protection under the Labor Law, that is, whether the defendants met their statutory duty to provide an adequate safety device, as per Blake. However, while Blake held that if a defendant provided a proper safety device then the accident must have been the sole proximate cause of the accident, the phrase "sole proximate cause" is never mentioned in O'Brien.

'O'Brien'

O'Brien concerned an employee who was descending an exterior temporary staircase, when he slipped and was injured. Plaintiff testified that it had been raining and the stairs were slippery. He also could not prevent his fall by grabbing onto the handrail, as the handrail was also wet.

Plaintiff submitted the affidavit of an expert who opined, based on photographs, that the stairs were "not in compliance with good and accepted standards," possessed "longstanding wear and tear" on the anti-slip protection treads of the scaffold and were smaller and narrower than typical stairs. 2017 NY Slip Op. 02466 at 3. The affidavit concluded that because of the rainy conditions coupled with wear and tear on the temporary stair case, a dangerous condition was created leading to plaintiff's injuries.

Defendants countered with an expert of their own. Defendants' expert stated that the temporary staircase was manufactured to provide traction during occasions of inclement weather and that there was no evidence that the staircase's treads had been worn down. Based on his experience, defendants' expert found that the "tread depth and width met good and acceptable construction industry standards." Id. at 4.

The court determined that although the statute is meant to be liberally construed to accomplish its intended purpose, absolute liability is "contingent upon the existence of a hazard contemplated in §240(1) and the failure to use, or the inadequacy of, the safety device of the kind enumerated therein" (quoting Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001)). More directly, the court found that when properly applied, liability may only be imposed where plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from significant elevation differentials.

The court continued: "To the extent the appellate division opinion below can be read to say that a statutory violation occurred merely because plaintiff fell down the stairs, it does not provide an accurate statement of the law. As we have made clear, the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240." It then distinguished this from "cases involving ladders or scaffolds that collapse or malfunction for no apparent reason," where a presumption could be made that the equipment provided was inadequate. 2017 NY Slip Op. 02466 at 5.

Finally, the court held:

There are questions of fact as to whether the staircase provided adequate protection … Defendants' expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants' expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff's expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment on the issue of liability.

Id. at 5.

Dissent

The decision produced a fervent dissent by Judge Jenny Rivera. Judge Rivera argued that allowing industry standards to be determinative in deciding whether a worker is offered "proper protection" allows owners and contractors to diminish their obligations under the statute and represents a misunderstanding of the legislative intent of the Scaffold Law, which Judge Rivera claimed, is to provide proper protection above industry standards, if necessary. Id. at 13 (Rivera, J. dissenting).

The dissent continued that because the staircase had failed to adequately protect plaintiff from the risk of slipping and because that failure caused his injuries, the burden shifted to the defendants to rebut plaintiff's motion. "Most importantly, and fatal to their position," Judge Rivera wrote, "defendants did not present evidence to rebut plaintiff's evidence that the staircase generally is slippery, especially when wet, as it was on the day of plaintiff's injury." Judge Rivera later concluded that, "even if the temporary staircase was the industry standard for wet conditions, the defendants could have ensured safer descent by roping off the wet staircase and directing workers to use the dry interior staircase." Id. at 8 (Rivera, J. dissenting).

Impact

In Blake, the court found that if a defendant provides an adequate safety device, then the accident must have occurred due to the misuse or failure to use the safety device, that is, that the plaintiff's conduct was the sole proximate cause of the accident. In Blake, the court found it was plaintiff's failure to lock the extension ladder which was the sole proximate cause of the accident. Cases that followed Blake relied upon a finding that sole proximate could excuse the defendant from any and all liability.

The O'Brien court seems to take the Blake concept a step further in holding that if the defendants prove that an adequate safety device was furnished, then they have met their statutory duty under Labor Law §240(1). It no longer follows then that plaintiff must have been the sole proximate cause of his accident. In fact, it is difficult to see how the plaintiff in O'Brien misused or failed to use an adequate safety device.

O'Brien increases the ease with which summary judgment may be defeated. When defendants can offer expert affidavits, the adequacy of a scaffold or ladder will now almost always be a question of fact. Presumably, this will result in more trials on the issue of whether the ladder or scaffold, as the case may be, afforded proper protection.

O'Brien elevates the status of expert witnesses. Defendants now should routinely retain an expert to examine the scaffold, ladder, etc. in order to provide an opinion of the adequacy of the safety device. This is something that defendants have been somewhat reluctant to do in the past, but now must be seen as required.

By allowing for an evaluation of the adequacy of equipment at the summary judgment phase and by welcoming expert affidavits on this issue, the Court of Appeals has given defendants a fresh opportunity to defend Labor Law §240(1) cases.

Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Patrick Prager, a paralegal, assisted in the preparation of this article.

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