'RUNNER' TAKES THE RIGHT DIRECTION ON SCAFFOLD LAW PROTECTION
by
Jason A. Richman on Jul. 30, 2013
Accident & Injury Personal Injury
Summary: NY Labor Law Sec. 240 protects construction workers injured on the job just as it should, resulting in New York's high marks for work site safety.
New York Law Journal
Volume 245
Copyright 2011 ALM Media Properties, LLC
Thursday, February 10, 2011
'RUNNER' TAKES THE RIGHT DIRECTION ON SCAFFOLD LAW PROTECTION
Jason A. Richman
Critics of the Labor Law's ‘scaffold section‘ (§240(1)) frequently make reference to the intent
of the statute, and generally do so without actually stating it. But what tends not to be set forth
in critiques of decisions liberally construing the scaffold section, is that, authoritatively, by
express intent, it is supposed to be liberally construed.[FN1]
For years there has been an insurance industry lobbying push to limit the scaffold section's
mandates on the provision, placement, and operation of certain enumerated safety devices at
construction sites.[FN2] These lobbying efforts have actually resulted in bills being drafted
and considered by the Legislature that, if they had been passed, would have eviscerated the
protections afforded to construction workers by the scaffold section.[FN3] The goal of the
pertinent Labor Law provisions is the protection of construction workers through imposition
of nondelegable requirements that owners and contractors provide certain types and classes of
safety devices for workers' use in performing construction work. This is a beneficent goal, and
one that the law seems to be actually accomplishing.[FN4] However, it can be expensive for
insurance companies because construction work really is dangerous and most owners and contractors
are sufficiently sophisticated to maintain significant insurance coverage. Because the
scaffold section imposes strict liability where its violation proximately causes injury, it has
resulted in many significant recoveries by injured workers over the years.
According to the Legislature and the Court of Appeals, the law is ‘undoubtedly‘ to be construed
as liberally as may be for the accomplishment of its protective purpose.[FN5] Limiting
its application so that injured construction workers fall outside of its protections, when defective
enumerated safety devices injure them, would be starkly inconsistent with such an explicit
protective goal.
A recent article chastised the Court of Appeals in Runner v. New York Stock Exchange, for
‘throw[ing] open the doors‘ to this protection where the statutory aegis was not ‘apparently‘
invoked.[FN6] In Runner, the plaintiff was assisting in the movement of an 800-pound object
across an elevation differential presented by a case of four stairs at a building construction
site. In order to facilitate that movement across an elevation differential, several specifically
enumerated safety devices were employed including rope, braces, and at least one horizontally
affixed metal bar to support the rope. The Court found that this method utilizing enumerated
devices approximated a hoist, which is also an enumerated device.[FN7]
The failure of an enumerated device that results in injury during the course of construction
work traversing an elevation differential ‘undoubtedly‘ invokes the statutory protections of the
scaffold section as a matter of law and common sense.[FN8]
Propriety of 'Runner'
The decision of the Runner court is exactly consistent with the language of the statute and
with its express intent. Protecting Victor Runner can only be characterized as ‘appearing‘ inconsistent
with the statute when his situation is taken out of context by asserting some of the
more restrictive factspecific decisions that muddy the waters of Labor Law application. This
tack is not consistent with fostering an intended protective effect.
For example, if a scaffold collapses and falls to the ground, and a worker working from the
scaffold falls with it, then he must surely be protected by the statute; however, if part of the
rationale for the decision of Misseritti v. Mark IV Construction Co., Inc.[FN9] is to be literally
and strictly followed, another worker working from the ground adjacent to the falling
scaffold who gets hit by it as it falls, is not covered because he was standing on the same level
where the scaffold was based. Such an outcome cannot be consistent with a liberal construction
of this law. In the hypothetical above, the failure of an enumerated device, which, assisted
by the application of gravity, injures a worker on the ground, should be a protected
event.[FN10] Where a specifically enumerated safety device, utilized to overcome an elevation
differential, fails during such use, causing injury, the scaffold section simply must apply.
Further evidence of the propriety of the Runner decision can be found in the oft-cited line of
cases culminating in Narducci v. Manhasset Bay Associates, which holds Section 240(1) inapplicable
in falling object cases where the object was not ‘an object being hoisted or secured...‘[
FN11] The critics of the scaffold section applauded this decision, indeed they filed
amicus briefs seeking it.[FN12] Now, in Runner, the Court holds that where an object is being
hoisted, and the failure of the hoist, assisted by gravity, causes injury, the Labor Law undoubtedly
applies. Despite the consistency with Narducci, these same critics incongruously argue
that the scaffold section should not be applicable in Runner.
The argument seems to be that the injury was neither caused by a worker falling, nor by a falling
object striking a worker. Courts have held that a worker who gets a cut while on a sound,
well-secured ladder is not covered,[FN13] but that a worker who gets a cut by a saw falling
from above is covered.[FN14] The determinative question is whether the absent or defective
safety device was designed to protect against the injurious hazard. The hazard is not the sharp
thing that cuts in a labor law case, the hazard is gravity-related. The injury may be a cut, but
the hazard against which a device is required to protect cannot be a cut, unless it should happen
to be gravity related.
When a provided safety device is proven defective by its failure, and resulting gravity-driven
injury, the affirmative action of providing that dangerous instrumentality is a violation of the
law. The statute requires owners and contractors to act, it requires the provision of properly
placed and operated hoists; where a defendant actively provides a defective hoist that causes
injury by its failure to control a load traversing an elevation differential, as in Runner
(providing an improper hoist), or even by its merely falling on the head of a worker
(improperly placing and operating a hoist),[FN15] the plain text of the scaffold section has
been violated.
Determining Meaning
Determining the meaning of a statute can of course be difficult ‘when what the judges have to
do is, not to determine what the legislature did mean on a point which was present to its mind,
but to guess what it would have intended on a point not present to its mind, if the point had
been present.’ ‘[FN16] Happily interpreting decisional law, where the same basic problem
arises, should be significantly easier because the judicial interpretation of a statute leaves posterity
with the added guidance provided by the legislation itself. Judicial opinions are impliedly
consistent with any unambiguous language in the statutes they interpret.
Recently, a federal district court in New York interpreted a large body of decisional law on a
similar statutory issue. In Bonocore v. Vornado, Southern District of New York Judge Laura
Taylor Swain wrote that:
The references to falling persons and objects in this definitional phrase are presented in the
form of exemplars (i.e., ‘such gravity-related accidents as ‘). Given the statute's strict focus on
the adequacy of safety devices used to reduce elevation-related risk and the Court of Appeals'
interpretive emphasis on gravity as a force in a covered elevationrelated accident, it appears to
this Court logical that an injury caused by an effort to resist the force of gravity that was necessitated
by the inadequacy or absence of elevationrelated safety equipment would be well
within the scope of covered hazards...[FN17]
In finding conflict among various iterations of the law from several courts, the court in Bonocore
looked all of the way back to the actual language of the statute to determine that defective
devices injuring workers and driven by gravity are covered under the law. In Runner, a defective
device injured a worker when he held on to a rope pulled by gravity into a pinch point.
While pinch points are not a hazard contemplated by Labor Law §240(1), where gravity forces
an encounter with one, because of a defect in an enumerated device, the protective aegis has
been very ‘apparently‘ invoked.
Whether standing in their path, or grabbing them by the tail, tigers can be quite dangerous,
and any useful anti-tiger statute ought to protect people either way. If the purpose of the law
really is to protect construction workers from the gravity-related dangers inherent in the work
that they do, by giving a strong safety incentive to the financially responsible parties who contract
for and benefit from that work, then the scaffold section should be applied in every case
where it can be, consistent with the law's clearly expressed language and liberally protective
intent. This is especially apparent where, as in Runner, a specifically enumerated device fails
causing a gravity-driven injury.
Volume 245
Copyright 2011 ALM Media Properties, LLC
Thursday, February 10, 2011
'RUNNER' TAKES THE RIGHT DIRECTION ON SCAFFOLD LAW PROTECTION
Jason A. Richman
Critics of the Labor Law's ‘scaffold section‘ (§240(1)) frequently make reference to the intent
of the statute, and generally do so without actually stating it. But what tends not to be set forth
in critiques of decisions liberally construing the scaffold section, is that, authoritatively, by
express intent, it is supposed to be liberally construed.[FN1]
For years there has been an insurance industry lobbying push to limit the scaffold section's
mandates on the provision, placement, and operation of certain enumerated safety devices at
construction sites.[FN2] These lobbying efforts have actually resulted in bills being drafted
and considered by the Legislature that, if they had been passed, would have eviscerated the
protections afforded to construction workers by the scaffold section.[FN3] The goal of the
pertinent Labor Law provisions is the protection of construction workers through imposition
of nondelegable requirements that owners and contractors provide certain types and classes of
safety devices for workers' use in performing construction work. This is a beneficent goal, and
one that the law seems to be actually accomplishing.[FN4] However, it can be expensive for
insurance companies because construction work really is dangerous and most owners and contractors
are sufficiently sophisticated to maintain significant insurance coverage. Because the
scaffold section imposes strict liability where its violation proximately causes injury, it has
resulted in many significant recoveries by injured workers over the years.
According to the Legislature and the Court of Appeals, the law is ‘undoubtedly‘ to be construed
as liberally as may be for the accomplishment of its protective purpose.[FN5] Limiting
its application so that injured construction workers fall outside of its protections, when defective
enumerated safety devices injure them, would be starkly inconsistent with such an explicit
protective goal.
A recent article chastised the Court of Appeals in Runner v. New York Stock Exchange, for
‘throw[ing] open the doors‘ to this protection where the statutory aegis was not ‘apparently‘
invoked.[FN6] In Runner, the plaintiff was assisting in the movement of an 800-pound object
across an elevation differential presented by a case of four stairs at a building construction
site. In order to facilitate that movement across an elevation differential, several specifically
enumerated safety devices were employed including rope, braces, and at least one horizontally
affixed metal bar to support the rope. The Court found that this method utilizing enumerated
devices approximated a hoist, which is also an enumerated device.[FN7]
The failure of an enumerated device that results in injury during the course of construction
work traversing an elevation differential ‘undoubtedly‘ invokes the statutory protections of the
scaffold section as a matter of law and common sense.[FN8]
Propriety of 'Runner'
The decision of the Runner court is exactly consistent with the language of the statute and
with its express intent. Protecting Victor Runner can only be characterized as ‘appearing‘ inconsistent
with the statute when his situation is taken out of context by asserting some of the
more restrictive factspecific decisions that muddy the waters of Labor Law application. This
tack is not consistent with fostering an intended protective effect.
For example, if a scaffold collapses and falls to the ground, and a worker working from the
scaffold falls with it, then he must surely be protected by the statute; however, if part of the
rationale for the decision of Misseritti v. Mark IV Construction Co., Inc.[FN9] is to be literally
and strictly followed, another worker working from the ground adjacent to the falling
scaffold who gets hit by it as it falls, is not covered because he was standing on the same level
where the scaffold was based. Such an outcome cannot be consistent with a liberal construction
of this law. In the hypothetical above, the failure of an enumerated device, which, assisted
by the application of gravity, injures a worker on the ground, should be a protected
event.[FN10] Where a specifically enumerated safety device, utilized to overcome an elevation
differential, fails during such use, causing injury, the scaffold section simply must apply.
Further evidence of the propriety of the Runner decision can be found in the oft-cited line of
cases culminating in Narducci v. Manhasset Bay Associates, which holds Section 240(1) inapplicable
in falling object cases where the object was not ‘an object being hoisted or secured...‘[
FN11] The critics of the scaffold section applauded this decision, indeed they filed
amicus briefs seeking it.[FN12] Now, in Runner, the Court holds that where an object is being
hoisted, and the failure of the hoist, assisted by gravity, causes injury, the Labor Law undoubtedly
applies. Despite the consistency with Narducci, these same critics incongruously argue
that the scaffold section should not be applicable in Runner.
The argument seems to be that the injury was neither caused by a worker falling, nor by a falling
object striking a worker. Courts have held that a worker who gets a cut while on a sound,
well-secured ladder is not covered,[FN13] but that a worker who gets a cut by a saw falling
from above is covered.[FN14] The determinative question is whether the absent or defective
safety device was designed to protect against the injurious hazard. The hazard is not the sharp
thing that cuts in a labor law case, the hazard is gravity-related. The injury may be a cut, but
the hazard against which a device is required to protect cannot be a cut, unless it should happen
to be gravity related.
When a provided safety device is proven defective by its failure, and resulting gravity-driven
injury, the affirmative action of providing that dangerous instrumentality is a violation of the
law. The statute requires owners and contractors to act, it requires the provision of properly
placed and operated hoists; where a defendant actively provides a defective hoist that causes
injury by its failure to control a load traversing an elevation differential, as in Runner
(providing an improper hoist), or even by its merely falling on the head of a worker
(improperly placing and operating a hoist),[FN15] the plain text of the scaffold section has
been violated.
Determining Meaning
Determining the meaning of a statute can of course be difficult ‘when what the judges have to
do is, not to determine what the legislature did mean on a point which was present to its mind,
but to guess what it would have intended on a point not present to its mind, if the point had
been present.’ ‘[FN16] Happily interpreting decisional law, where the same basic problem
arises, should be significantly easier because the judicial interpretation of a statute leaves posterity
with the added guidance provided by the legislation itself. Judicial opinions are impliedly
consistent with any unambiguous language in the statutes they interpret.
Recently, a federal district court in New York interpreted a large body of decisional law on a
similar statutory issue. In Bonocore v. Vornado, Southern District of New York Judge Laura
Taylor Swain wrote that:
The references to falling persons and objects in this definitional phrase are presented in the
form of exemplars (i.e., ‘such gravity-related accidents as ‘). Given the statute's strict focus on
the adequacy of safety devices used to reduce elevation-related risk and the Court of Appeals'
interpretive emphasis on gravity as a force in a covered elevationrelated accident, it appears to
this Court logical that an injury caused by an effort to resist the force of gravity that was necessitated
by the inadequacy or absence of elevationrelated safety equipment would be well
within the scope of covered hazards...[FN17]
In finding conflict among various iterations of the law from several courts, the court in Bonocore
looked all of the way back to the actual language of the statute to determine that defective
devices injuring workers and driven by gravity are covered under the law. In Runner, a defective
device injured a worker when he held on to a rope pulled by gravity into a pinch point.
While pinch points are not a hazard contemplated by Labor Law §240(1), where gravity forces
an encounter with one, because of a defect in an enumerated device, the protective aegis has
been very ‘apparently‘ invoked.
Whether standing in their path, or grabbing them by the tail, tigers can be quite dangerous,
and any useful anti-tiger statute ought to protect people either way. If the purpose of the law
really is to protect construction workers from the gravity-related dangers inherent in the work
that they do, by giving a strong safety incentive to the financially responsible parties who contract
for and benefit from that work, then the scaffold section should be applied in every case
where it can be, consistent with the law's clearly expressed language and liberally protective
intent. This is especially apparent where, as in Runner, a specifically enumerated device fails
causing a gravity-driven injury.