The Continuing Expansion of Labor Law Section 240
Defense Digest, Vol. 23, No. 1, March 2017
by Seth A. Frankel, Esquire
For attorneys defending personal injury claims arising out of construction accidents in New York, one of the biggest challenges is defeating the plaintiff-friendly provisions of Labor Law § 240. Unfortunately, the landscape appears to be shifting to an even more hostile environment for defendants if the recent case of Saavedra v. 89 Park Avenue, LLC, 39 N.Y.S.3d 462 (App.Div. 1st Dept. 2016) is any indication.
Before tackling the Saavedra case, a quick recap of Labor Law § 240 is appropriate. Generally, Labor Law § 240 calls for strict liability against owners and general contractors, without regard for actual negligence, for workers who fall from a height (Valensisi v. Greens at Half Hollow, LLC, 823 N.Y.S.2d 416 (App.Div. 2nd Dept. 2006)) or who are struck by a falling object (Naughton v. City of New York, 940 N.Y.S.2d 21 (App.Div. 1st Dept. 2012)). Assuming both the worker and the work are encompassed under the statute, there are essentially two defenses: sole proximate cause or recalcitrant worker.
The sole proximate cause defense states that there is no liability when the plaintiff’s own negligence is the sole proximate cause of the accident. This is distinct from comparative negligence, which is not a defense under Labor Law § 240, as decided in Blake v. Neighborhood Housing Services of New York City, Inc., 803 N.E.2d 757 (N.Y. 2003). In Blake, the plaintiff fell from a ladder that he had set up himself and which was free of defects. The accident occurred because of the way the plaintiff used the ladder, not because of a malfunctioning or defective safety device. Based upon this, the jury’s finding that the ladder provided proper protection to the plaintiff was upheld.
The other defense to liability under Labor Law § 240 is the recalcitrant worker defense, which states that an owner or general contractor is not liable where it provides safety devices or safety instructions but a worker ignores those instructions or devices. In Cahill v. Triborough Bridge and Tunnel Authority, 823 N.E.2d 439 (N.Y. 2004), the plaintiff received instructions to use a safety line while climbing, which he then disregarded. The plaintiff’s recalcitrance was deemed the cause of the accident.
In Saavedra, the plaintiff was injured when he fell from the top step of a six-foot A-frame ladder. There were eight-foot A-frame ladders available on the job site, and the plaintiff was aware of those ladders. The plaintiff claimed, however, that due to the presence of debris on the floor, he was unable to completely open the eight-foot A-frame ladder. Accordingly, he used the shorter ladder, which was not tall enough to reach where he was working. Thus, he stood on the top step, despite admitting that he knew it was unsafe.
The plaintiff claimed his foreman had told him at the beginning of the day to keep working on what they were doing, after which the foreman left the site. The foreman did not specifically direct him to work in a particular room, the plaintiff merely had to install lighting on the whole project, including the room where his accident occurred.
The plaintiff also testified that he told the site safety manager that there was too much debris for him to safely perform his work. In response, the site safety manager told the plaintiff he could not work like that and it was unsafe. The plaintiff countered, however, that the site safety manager conceded she lacked the authority to directly instruct the plaintiff or to stop him from working. Nevertheless, even if the site safety manager lacked the authority to stop the plaintiff from working, the plaintiff disregarded the site safety manager’s opinion about the danger of the debris.
The defendants in Saavedra argued that there was no reason for the plaintiff to choose a spot where the correct ladder could not be opened, use the wrong ladder and disregard the site safety manager. There was no evidence of time pressure or any emergency that required the plaintiff to work in the area where he was injured. His foreman’s instructions were general in nature and merely required the plaintiff to “keep working.” As the defendants argued, the plaintiff was provided with an appropriate safety device but opted to use an inappropriate safety device.
At the Supreme Court level an issue of fact was found. On appeal, the Appellate Division, First Department reversed, granting summary judgment for the plaintiff. The Appellate Court held that the plaintiff was not the sole proximate cause of his accident because the debris prevented him from opening the eight-foot ladder. Similarly, the Appellate Division held that the plaintiff could not be deemed a recalcitrant worker because the site safety manger’s opinion did not carry the weight of a formal instruction. Moreover, the court found the debris was a recurrent condition well known to the owner and general contractor, eliminating the applicability of the recalcitrant worker defense.
The most important point of the Saavedra decision is that the Appellate Division appears to be trending towards granting summary judgment, rather than permitting the jury to be the final arbiter on the applicability of the sole proximate cause or recalcitrant worker defenses. Here, there appeared to be at least conflicting testimony that necessitated a finding of an issue of fact. The Appellate Division, however, granted summary judgment for the plaintiff.
It appears that Saavedra represents another step in the erosion of Labor Law § 240 defenses. Going forward, it will be imperative to swing the pendulum back towards defendants, lest the sole proximate cause and recalcitrant worker defenses become meaningless.
*Seth, an associate in our New York City office, can be reached at 212.376.6446 or firstname.lastname@example.org.
Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.