Labor Law §240 was enacted in response to the Legislature’s concern over unsafe conditions for employees who worked at height-related worksites. When assessing §240 claims in New York, parties should be aware that courts interpret the word “structure” liberally and that the word itself can manifest in a multitude of ways. This article highlights some surprising examples.

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

November 17, 2020

Section 240 of the New York Labor Law was enacted over a hundred years ago in response to the Legislature’s concern over unsafe conditions that beset employees who worked at height-related worksites. The Law obligates property owners and general contractors to protect workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” See N.Y. Lab. Law §240 (McKinney 1986).

Although Labor Law 240(1) covers work that is performed on a “building” or “structure,” neither “building” nor “structure” is defined. In keeping with the statute’s intent, courts have interpreted the word “structure” liberally to include much more than buildings or houses. For example, the Court of Appeals in Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415, 420, 88 N.E. 747 (1909) held that a “structure” is.

“any production or piece of work artificially built up or composed of parts joined together in some definite manner.” A hundred years later, the Court of Appeals is still applying this same definition. See Lewis- Moors v. Contel of New York, 78 N.Y.2d 942, 943 (1991).

In Joblon v. Solow, 91 N.Y.2d 457, 464, 695 N.E.2d 237 (1998), the Court of Appeals refused to limit relief to only construction sites as it would “eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites.” Whether an item is or is not a “structure” is fact-specific and must be determined on a case-by-case basis. See Corning v. Elms Realty, 65 Misc.3d 1234(A), 119 N.Y.S.3d 827 (N.Y. Sup. Ct. 2019). Courts may consider the items’ size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor is controlling. Id.

Since the time the Caddy court defined a structure, courts have applied that term to several diverse items. Examples include a telephone pole with attached hardware and cables (see Lewis-Moors, 78 N.Y.2d 942 at 578), a ticket booth at a convention center (see Panico v. Advanstar Commc’ns, 92 A.D.3d 656, 658 (2012)), a power screen being assembled at a gravel pit (see Hodges v. Boland’s Excavating & Topsoil, 24 A.D.3d 1089, 1091 (2005)), a window exhibit at a home improvement show (see Sinzieri v.Expositions, 270 A.D.2d 332, 333 (2000)), a utility van (see Moore v. Shulman, 259 A.D.2d 975 (1999)), a pumping station (see Cabri v. ICOS Corp. of Am., 240 A.D.2d 456, 457 (1997)), and a substantial free- standing Shell gasoline sign (see Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1001 (1995)). Consequently, attorneys should not take the word structure for granted. Although a job site may not seem like a structure in a particular case, a court is willing and able to recognize it as such.

Plaintiffs’ attempts to expand the reach of the definition of “structure” have provided startling results. An example of an unsuspecting worksite ultimately found as a structure was in McCoy v. Abigail Kirsch at Tappan Hill, 99 A.D.3d 13, 17 (2012) where the court found that dismantling a wedding canopy (a Chuppah) was a structure. The court held that the chuppah qualified as a “structure” as it consisted of “various interconnected pipes 10 feet long and three inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chuppah’s constituent parts in a process that took an experienced worker more than a few minutes to complete.”

Likewise, the court in Canfield v. Forman Jay, 46 Misc. 3d 1210(A) (N.Y. Sup. Ct. 2015) found that a tiki hut was a structure because of its size, purpose, design, composition, and complexity. The court found that the assembly of the tiki hut required numerous tools and separate teams of carpenters, set dressers, and scenic partners. Id. Although the tiki hut existed for only two months, this factor in and of itself, was insuffcient to outweigh the other factors which strongly supported the inference that the tiki hut was a “structure” within §240(1). Id.

Additionally, the court in Agate v. City of New York, No. 04-CV-5457 (RRM), 2009 WL 3171799, at *5 (E.D.N.Y. Oct. 2, 2009) found that a Ferris wheel is a “structure.” The court held that the Ferris wheel, which was approximately 85 feet high, took 35 hours to assemble, consisted of a hub, spokes, steel poles, and tubs containing seats for carnival-goers, constituted a “structure.” Id. Further, in Stringer v.Musacchia, 11 N.Y.3d 212, 898 N.E.2d 545 (2008), the plaintiff sustained injuries when he fell off a ladder while building a hunting shed. The Court of Appeals found that a hunting shed fell within the scope of Labor Law 240(1). Id.

Furthermore, the court in Faldetta v. State of New York 7 Misc. 3d 1018(A), 801 N.Y.S.2d 233 (Ct. Cl. 2005) held that a tent “falls squarely” within the definition of a structure. The court concluded that the tent was a structure as “[t]he components of the tent included six arches and their supports, center purlins, eave or edge purlins, cross braces, and a vinyl cover.” Id. In Kharie v. S. Shore Record Mgmt., 118 A.D.3d 955, 956, 988 N.Y.S.2d 654 (2014), the court held that the shelves at issue constituted a structure under §240(1) “as they were composed of component pieces (metal grates and cross bars) attached in a definitive manner.”

Similarly, in Corning, 65 Misc.3d 1234(A), the court found that a temporary stage set shed did constitute a structure within the scope of §240(1). The court reasoned that the stage set shed consisted of “three walls and a roof as well as a fourth wall with a built-in steel window. This was construction, and later was demolition, of a temporary structure within the ambit of the Labor Law.” Id.

In Ciancio v. Woodlawn Cemetery Ass’n, 249 A.D.2d 86, 88 (1st Dept. 1998), the plaintiff fell off a six-inch- wide plank into an open grave, sustaining injuries. The court held that a grave vault constituted a “structure” within the scope of ‘any production or piece of work artificially built up or composed of parts joined together in some definite manner.’ Id.

In like manner, in Dos Santos v. Consolidated Edison of N.Y., 104 A.D.3d 606 (1st Dept., 2013), the plaintiff fell into a steam manhole. The court held that a manhole constituted a structure within the meaning of §240(1) because it consisted of concrete boxes, with four walls, a base, and a manhole in the top for access. Id. These cases provide insightful information on the unconventional and bizarre objects courts have found to constitute a structure within the purview of Labor Law §240.

While the above cases may give the impression that the definition of structure is open-ended, there are limits to a court’s interpretation. The most notable case to this limitation is Lombardi v. Stout, 80 N.Y.2d 290, 296 (1992). The plaintiff was injured when he fell from a ladder while cutting down a tree. The Court of Appeals found that a tree is clearly not a “building” or a “structure” within the definition of §240(1); it is a product of nature.

The court in Tanzer v. A. Terzi Prods., 244 A.D.2d 224, 224 (1997) held that temporary decorations to a building used as a set for making a television film did not qualify as a structure. Additionally, the court in Kretzschmar v. New York State Urban Dev., 13 A.D.3d 270, 270 (2004) held that removing a sign from a temporary exhibit suspended from a ceiling at the Javits Center did not constitute a structure. Lastly, the court in Chuchuca v. Redux Realty, 303 A.D.2d 239 (2003) held that a commercial dishwasher was neither a structure nor a part of a structure within the definition of Labor Law §240(1).

Accordingly, case law within the last 10 years has provided helpful insight into how willing courts have been to expand the definition of “structure” under Labor Law §240. Although the Labor Law should be liberally construed, it should also be read in the natural way so as to get the exact meaning without forcing it in any direction in order to meet the needs of either side in a particular case. See Shannahan v. Empire Eng’g, 204 N.Y. 543, 548 (1912). Due to the various “directions” the word structure can be interpreted by courts, attorneys should be wary that whatever is being constructed could be deemed a sufficient structure for purposes of Labor Law §240. From a chuppah to a tiki hut, the definition of a structure encompasses more than what could first be presumed.

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

Reprinted with permission from the November 17,2020 edition of the New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved.
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