Profits v. Safety, Inevitable Attacks on Labor Law §240(1)

The critics of New York Labor Law §240(1) have long been engaged in a transparent, or even open, effort
to deprive New York’s construction workers of the increased safety currently and historically provided
by Labor Law §240(1). This section of the law nondelegably requires that property owners and
contractors provide safety “devices which shall be so constructed, placed and operated as to give proper
protection to” construction workers involved in elevation related work. This language is fairly clear and
simple, and when coupled with the simultaneously produced evidence of legislative intent, there can be
no doubt of the intentional benignant design of this law, and the directive that it be applied by the
courts as liberally as is needed in order for it to effect that designed good.

Our adversarial system of civil dispute resolution relies upon an evenhanded administration of its
proceedings, a fair playing field. This value sometimes confuses people into thinking that every aspect of
the process must not confer any advantage to one “side” or the other.6 This errant thinking has been
troubling opponents of Labor Law §240(1) for many years. Labor Law §240 is not designed to protect
owners and contractors; it is designed to protect workers.  It was written, and is to be liberally
construed, in order to afford extra protection to the workers asked to work at an elevation.8 It is
supposed to shift the balance in favor of workers by providing a strong financial incentive to owners and
contractors to do everything that they can to enhance safety.  This means using their influence, as the
big players, to make sure that safety is a prime concern at every level of the game.

Since it was first issued in 2001, Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267 (2001), has been
heralded by §249 opponents as the best and most reasonable interpretation of §240(1) by any court
dating back to the beginning. This fanfare was largely due to the decision being initially interpreted as
limiting the application of the Labor Law in cases involving falling objects, other than workers, to items
that were in the active process of being hoisted. Subsequent limitation of the decision has made clear
that such an interpretation is flatly incorrect; however, parties interested in eliminating these
protections still wistfully refer to the decision as a “high water mark” in the judicial interpretation of this
law.  With this background, the fervor of the current groups seeking “reform” in the application of the
Labor Law is not surprising; however, it is still wrong, as a simple review of the law, its express intent, its
judicial interpretation, and national construction safety statistics incorruptibly demonstrate.

Certain special interest groups would have the public believe that a drunken worker who elects to leap,
for no good reason, off of a proper scaffold has to be compensated under this law. Such a suggestion is
plainly and intentionally false. Where a worker causes the incident resulting in the injury, in the absence
of a violation of the law, or where a violation is not a contributing cause of the incident, the worker is
not compensated under the law.  For example, in another case often cited approvingly by those
seeking the removal of these worker protections, Montgomery v Federal Express Corp., 4 NY3d 805
(2005), the Court of Appeals found that a Labor Law §240(1) violation was not causally related to the
injury. In Montgomery the worker ascended to the roof of a structure utilizing an insufficient safety
device (overturned bucket), but elected, after completing his elevated task, to leap over that device
back down to the ground below suffering injury. The worker was injured in a situation covered by Labor
Law §240(1) (elevated construction work), and in the presence of a violation (overturned bucket) but,
due to his elective leap, he removed himself from the class of workers whom the law protects. Such
conduct on the part of workers does relieve owners and contractors of the statutory onus which would
otherwise hold them accountable.

The scaffold section is not automatic and is not irrational. What it does is put the maximum pressure
(financial) on owners and contractors to encourage their taking of every reasonable step to keep
workers safe. So a worker who accidentally or “negligently” causes an injury to himself in connection
with a Labor Law violation will be protected under the law, (negligence, contributory negligence, and /
or comparative fault are irrelevant under §240(1)) but as the law already stands, without any
desperately sought “reform”, a worker whose conduct departs sufficiently from propriety to make that
conduct the sole cause of the accident, simply will not be covered.

In the same vein that Narducci is lauded by §240 detractors, the more recent Court of Appeals decision
of Runner v. New York Stock Exch., 13 N.Y.3d 599 (2009) is manically decried.  If someone were to read
all of this agenda driven Runner criticism without knowing the affiliation of its authors, that person
would surely believe that the End was coming, that Runner was obviously the Red Heifer, and that the
four horsemen could not be too far behind it. So far, four years after the decision, no cataclysm has
befallen us. Construction in New York has not dried up and gone away. No drunkard has avariciously
leapt from a rooftop seeking to violate the coffers of the nobly embattled insurance companies. Rather,
the application of the law has continued predictably, reasonably, and in a manner appearing consistent
with the express protective purpose of the law.

For example, in Wilinski v. 334 E. 92nd Hous. Dev. Fund, 18 N.Y.3d 1 (2011) the Court of Appeals, citing
to Runner, held that where a demolition project resulted in heavy pipes, more than 3 meters tall, being
detached from the structure being demolished, but not removed from the worksite, and where they then fell
from their vertical position striking a worker, the statute was arguably violated and summary judgment
dismissing the complaint was not proper. In order for the safe completion of the task then at hand, the
pipes should have been secured from falling. They were not. The law is clear that objects that require
securing in order for the work to safely proceed activate the statute.  This was just such a situation. In
Wilinski the Court found this connection and directed that the matter go to a jury for a
determination of whether or not the plaintiff had been properly protected from this hazard. Section
240(1) opponents wail that this decision defiles another of their sacred precepts arising from an old
favorite case. In Misseritti v. Mark IV Constr., 86 N.Y.2d 487 (1995), they claim an inviolable rule was
minted that no liability under the section can arise from the fall of an object, the base of which was
located on the same level the worker occupied at the time of his injury. As the Court of Appeals wrote in
Wilinski:

Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level. Rather, just as in Narducci, the absence of a causal nexus between the worker's injury and a lack or failure of a device prescribed by section 240 (1) mandated a finding against liability..,.

                                            Wilinski, 18 N.Y.3d at 9

The Court flatly rejected the cherished idea of §240 opponents that the so called “same level rule” was
actually a rule at all, opining directly that such a blind approach “ignores the nuances of an appropriate
section 240 (1) analysis.”

Another case often alluded to as an untoward expansion of §240 application is Kempisty v. 246 Spring
Street, 92 A.D.2d 474 (1st Dept. 2012) in which a heavy block (four tons) that was actually in the process
of being “hoisted” moved in an unintended manner causing an injury to a worker. Because the block did
not fall on the worker’s head, and had not been elevated significantly above the worker’s head, Labor
Law reform advocates considering this case move away from their previously urged pedantic adherence
to the notion that “hoisting” injuries as described in their favorite Narducci, qualify for Labor Law
protection. Instead, here they are outraged that a de minimis elevation differential could qualify under
the statute, again even though the block was actively being “hoisted” at the time of the injury. Inviolable rules
are good from this facile perspective if they protect cash reserves rather than workers.

This outrage about de minimis elevation differentials arises again in response to the recent decision of
Marrero v. 2075 Holding, 106 A.D.3d 408 (1st Dept. 2013). In Marrero, the Appellate Division found that
transporting over one thousand pounds of steel beam, and other materials, elevated to the top of an a-frame
cart, activated the statute when the beams fell from their position atop that cart and struck a
worker causing injury. The contention again being apparently that de minimis elevation differentials
associated with moving building materials cannot activate the statute even if they do fall from an
elevated position and strike a worker. However, the Court of Appeals in another cart case found that
such an argument was inconsistent with the purpose and proper interpretation of §240(1). In Outar v.
City of New York, 5 N.Y.3d 731 (2005), a worker doing subway construction work was injured when a
cart (dolly) fell from an unsecured position just above the worker striking him and causing injury. The
Court simply held that for the purposes of the work in progress the cart needed to have been secured,
and was not, thereby violating the statute (“The elevation differential between the dolly and plaintiff
was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required
securing for the purposes of the undertaking”).

So attacks on the application of this law to protect workers continue in fevered pitch; efforts at
legislative reforms are consistently urged by the special interest groups aligned with its removal, so far
without success; new construction in New York State continues, and is safer for the workers than in
most other states; drunkards and daredevils are still rebuffed if ever they deign, wielding §240, to assail
the entrenched coffers of the insurance industry; and bright line rules in Labor Law §240(1)
jurisprudence are rightly being subjugated to that most valuable of judicial commodities, discretion. The
pursuit of the legislatively enacted public goal of protecting construction workers is still being
considered in the course of this litigation as it should be, and must be according to the legislature. Again,
the legislature has instructed the courts as to its intent as embodied by this law. Construction is
dangerous. A majority of fatal (non-vehicular) accidents occurring in connection with construction
involve falls or falling objects. Given the prevalence of these types of incidents, special protections
ought to be put in place to minimize their occurrence and their harm. These protections have the
purpose of protecting workers and should be interpreted as doing so when the extension of such
protection can be accomplished through an appropriate and reasoned, but liberal application of the law.

In simple, basic human terms, outside of the law, we know that it is better to save lives than to save
money or profit margins at their expense. This law prevents avoidable injuries and deaths; we should
not advocate its limitation, and strive to allow those innocent deaths to occur for financial reasons.
While Swift’s Modest Proposal makes real economic sense, I for one, am not quite ready to adopt it.