LAW-Navigating the Labor Law Landscape-The NY Law Journal

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Navigating the Labor Law Landscape


David L. Scher and Stephen J. Murphy


11-14-2011


Issues surrounding Labor Law §240(1) continue to be hotly litigated in New York's appellate courts. In reviewing recent §240(1) appellate decisions, it becomes clear that while some trends are discernible, much ambiguity remains. This article focuses on a number of 2011 appellate cases that involved whether an unexpected mechanical failure or worker negligence can be a valid §240(1) defense and explored the dynamic sole proximate cause and recalcitrant worker defenses. For practitioners representing plaintiffs or defendants in construction accident cases, understanding these decisions is necessary to developing successful case theories through discovery and crafting persuasive arguments in motion and trial practice.

Worker Negligence

Harris v. City of New York1 involved an iron worker injured while assisting in the removal of a massive concrete slab from the road deck of the Macombs Dam Bridge, which spans the Harlem River. While a crane attempted to lift a slab, which weighed one ton, one end of the slab remained stuck to the bridge. To free the slab, plaintiff's foreman directed him to wedge a piece of four-by-four lumber where the slab remained attached, and had the crane lower the slab to place pressure on the wedge. After several unsuccessful attempts, the plaintiff was then instructed to wedge a six-to-eight foot long piece of lumber where the slab remained attached, and stand on the other end of the lumber to stabilize it while the slab was lowered again. This placed the plaintiff three-to-four feet above ground level. The plaintiff then motioned for the crane operator to lower the slab slowly, but it descended quickly instead, causing the lumber on which plaintiff stood to shatter and throwing him to the ground.

The trial court granted the City's motion to dismiss the case, finding that the accident did not result from a "difference in the elevation level of the required work," was "an ordinary peril of a crane lifting operation" and therefore did not implicate the protections of §240(1).2 The Appellate Division, First Department, reversed and granted plaintiff summary judgment pursuant to the section. In so holding, the court focused on the "falling object" portion of the incident, rather than the worker's subsequent fall, and analogized the case to the landmark Court of Appeals decision in Runner v. New York Stock Exch. Inc.3 Borrowing from the language of Runner, the court found that the accident resulted from the slab's "unchecked, or insufficiently checked, descent" and the injury flowed directly from the effect of gravity on the slab as it descended.4 The court dismissed the arguably de minimis height of the slab by citing its significant weight and the force it was capable of generating.

There are two important precedential aspects of the Harris decision. First, the First Department rejected the defense argument that none of the safety devices used to lower the slab broke or otherwise malfunctioned. In Runner, expert testimony was adduced at trial that the make-shift human pulley system utilized by the plaintiff and his co-workers to lower an 800 pound reel of wire down a set of stairs was inadequate and a proper pulley or hoisting mechanism should have been used instead.5 In contrast, the Harris decision references no evidence that the crane and its attachments that were employed to lower the slab were inadequate, improper or defective.

The First Department, conceivably, could have followed its approach from an earlier case, Elezaj v. P.J. Carlin Const. Co.,6 in which the bucket of a backhoe was mistakenly lowered onto the plaintiff's hand by an allegedly negligent backhoe operator. The Elezaj court found that §240(1) did not apply specifically because gravity played no role in the occurrence.7 The Harris court, on the other hand, seized upon the unchecked, rapid descent of the slab being lowered, and found that no safety devices were provided to guard against the risk of the slab's unregulated and speedy descent.8 By doing so, the court seems to have impliedly found that the rapid descent of the slab was foreseeable and should have been addressed by the proper placement and use of safety devices. The court also apparently, but again only impliedly, concluded that any negligence on the part of the crane operator was not so unusual or attenuated as to constitute a superceding cause which, in another context, might have protected the defense from §240(1) liability.

To the same point, a similar First Department decision published only two weeks after Harris, Rendino v. City of New York,9 is another important one to digest. There, in order to perform his window caulking work on the exterior sixth floor of a building, the plaintiff stood inside a bucket attached to the boom of a crane by a cable. While the worker was being lowered, the bucket suddenly dropped "several feet," causing the worker to fall within the bucket and suffer injuries.10 The First Department, in a reversal of the trial court's decision, granted plaintiff summary judgment under §240(1). In its decision, the court explicitly wrote that it was unconcerned with whether the bucket's sudden, rapid descent was the result of mechanical failure. It appears that, at least in the First Department, once the core elements of Runner are met, a simple, "The machine failed. What could we have done?" defense will not suffice to escape statutory liability.

Another notable element of the Rendino decision is the court's application of §240(1) despite the fact that the worker did not suffer a traditional fall. A more defense-friendly decision may have denied the worker summary judgment, finding that the bucket succeeded in its core function of protecting the worker from falling to the ground.

The second noteworthy element of the Harris decision involves what is likely the most dynamic §240(1) issue today: the sole proximate cause defense. Harris characterized the defense as requiring a showing that a worker, "on his own initiative, took a foolhardy risk which resulted in injury."11 This is not a novel concept, but is another recent example of a court attempting to craft its own lasting, succinct definition of what activity properly supports a sole proximate cause defense. Another useful characterization, found in a recent Supreme Court, Kings County, decision, expressed the defense as requiring that a plaintiff "engaged in unforeseeable, reckless activities [or] misused a safety device that was provided to him."12

Practitioners will be well served by using such sole proximate cause definitional verbiage, pulled directly from decisions such as this, in crafting arguments in motion papers and in forming questions at depositions. Another interesting and oft-appearing aspect of §240(1) case law is the court's willingness to decide traditionally factual questions as a matter of law—in the case of Harris, whether the ironworker's conduct was "foolhardy," "unforeseeable" or "reckless." In this sense, from a practice perspective, attorneys affirmatively moving for summary judgment under §240(1), on behalf of plaintiffs and defendants alike, must walk a tightrope of presenting enough factual background and rhetorical arguments to justify their characterization of the worker's behavior, but not too much that a triable issue of fact becomes apparent.

There are, of course, instances where courts find triable issues of fact with respect to sole proximate cause, but the results are not always predictable. Recently, in Bruce v. 182 Main St. Realty Corp., the First Department denied summary judgment to a defendant based in large part upon the plaintiff's testimony that the ladder on which he was working "shook and wobbled." The court reinforced the rule that "failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law 240(1)."13 The ladder in Bruce was positioned on two surfaces, partly on a pallet and partly on concrete, because the plaintiff had to maneuver it "to fit between two car engines on pallets" to access his work area.14 After determining the ladder was secure enough, and without anyone supporting it, the Bruce plaintiff ascended the ladder, and fell within five minutes. Plaintiff "was unable to recall whether he felt the ladder move or shift before he toppled off, although he asserted that the ladder was shaking or wobbling."15

Then, in October 2011, the Second Department, in Schick v. 200 Blydenburgh, LLC, similarly denied summary judgment to a plaintiff on the ground that there were issues of fact regarding the "height at which the plaintiff was working, the condition of the floor, the condition of the rubber feet of the extension ladder, and whether the plaintiff's positioning of the ladder was the sole proximate cause of the accident."16 In Schick, plaintiff testified that as he was attaching wire to trusses about 20 feet high, "he felt the ladder on which he was standing shift up and down, the bottom of the ladder slid out" and he fell. He also "alleged that the ladder slipped or shifted due to sand, dirt, or dust on the floor."17

Interestingly, the court did not endeavor to distinguish the facts of Schick from its 2009 decision in Crooks v. E. Peters, LLC, in which it had concluded that a plaintiff's testimony that "the unsecured ladder that he was standing on while working slipped, causing him to fall" entitled him to judgment as a matter of law under §240(1).18 In Crooks, defendants "failed to raise a triable issue of fact as to whether the plaintiff's own conduct was the sole proximate cause of the accident," where plaintiff's testimony was that he was "approximately twelve feet above the ground," drilling a hole in a wall when he felt "a slight jerk" and "[t]he ladder then slid straight down the wall to the side."19 The Crooks decision also pointed out that plaintiff and another worker cleaned the floor before leaning the ladder against the wall.20 Still, one could certainly argue that these results are inconsistent.

Conflated Defenses

Another aspect of recent §240(1) case law of which practitioners must be acutely aware is the conflation of the sole proximate cause and recalcitrant worker defenses. Of course, given the way the case law has developed, there is no way to draw a perfectly clean line between the two defenses. There will be occasions on the work site where a safety instruction allegedly received by a worker can fairly be tested for its immediacy and specificity, while at the same time the worker's actions may be analyzed to determine whether they were "reckless" enough to rise to the sole proximate cause level.

In the wake of Court of Appeals decisions like Cahill v. Triborough Bridge & Tunnel Auth.,21 Montgomery v. Federal Express Corp.22 and Robinson v. East Medical Center, LP,23 some plaintiff's attorneys feared that the recalcitrant worker defense, which undeniably imposes a higher burden on the defense to successfully pursue, would be swallowed up entirely by the apparently more defense-friendly and unpredictable sole proximate cause defense. Indeed, the sole proximate cause defense, by its nature, is less predictable because it has been defined by less objective terms. Deliberate refusal of an immediate and specific safety instruction is a relatively easily-understood and identifiable occurrence, but what constitutes "foolhardy" or "reckless" construction site behavior could depend on the disposition of the examining judge or panel.

One Second Department decision from this year, Durmiaki v. Int'l Bus. Machines Corp.,24 revealed that the recalcitrant worker defense is still alive. There, the plaintiff climbed up an unsecured A-frame ladder to cut a horizontal pipe nine to 10 feet above the ground. He could have used a scaffold, man-lift and/or safety harness, all of which were on the site, but did not. Had he inspected the suspensions for the pipe before ascending the ladder, the plaintiff would have noticed that one of the pipe's supporting rods was missing, and would have likely avoided that pipe falling, striking his ladder and causing him to fall to the ground.

The Second Department reversed the Dutchess County trial court decision, and granted plaintiff summary judgment under §240(1). The decision could have justified its outcome by holding that the plaintiff was not the sole proximate cause of his injuries because none of the allegedly negligent behavior of the plaintiff, even accepting each of the defense's accusations as true, could be deemed reckless, foolhardy or unforeseeable. Rather, the actual Durmiaki decision applied recalcitrant worker standards, and rejected each of those defense arguments by repeatedly and succinctly stating that plaintiff never received any instruction against doing the allegedly unsafe things he had done.

Is the court saying that unless a worker is specifically disobedient in the face of a specific safety order, there is no defense to the statute after its prima facie elements have been established? Or did the court decide, without revealing its thought process, that this particular case should be analyzed under the recalcitrant worker test because this worker was so obviously not reckless in his behavior, even if he was arguably negligent, that an analysis under sole proximate cause terms was unnecessary? Oddly, and perhaps further confusing the issue, the Durmiaki decision does not contain the words "recalcitrant worker" at all, but rather frames its discussion as one of "sole proximate cause."

Other recent appellate decisions involving the defenses include Paz v. City of New York, which upheld the decision to dismiss plaintiff's complaint pursuant to §240(1) where the "record established that plaintiff knew that he was expected to use a ladder to climb onto the elevated scaffold…but chose for no good reason not to do so,"25 and Tomlins v. DiLuna, where the plaintiff worked from a home's porch roof, rather than on scaffolding that the worker had used earlier the same day.26 The Second Department in Tomlins found that issues of fact existed as to whether his decision not to use the scaffolding was the sole proximate cause of his accident. Perhaps the worker in Tomlins had an arguably good reason for not using the scaffold, but the decision does not identify one.

The Fourth Department recently authored an opinion that adhered strictly to the traditional requirements of the recalcitrant worker defense. In Mazurett v. Rochester City School Dist., the court granted plaintiff summary judgment under §240(1), where the worker fell from a collapsing scaffold, after having been instructed to use a more stable scaffold and a ladder to ascend the scaffold. The court entirely rejected the defense, noting a lack of evidence that the plaintiff had refused to use a particular ladder or scaffold that was provided to him, even if such equipment was located somewhere on the site.27 But in Maloney v. J.W. Pfeil & Co. Inc., the Third Department outright dismissed a plaintiff's §240(1) cause of action, where the plaintiff had engaged in admittedly unsafe behavior by standing on the top cap of a six-foot A-frame ladder, but also testified that he was unable to find a more suitable device after searching the floor on which he was working.28

The difficulty of predicting the success of sole proximate cause and recalcitrant worker defenses is well-illustrated by the above decisions. One worker, who futilely searched out the floor he was working on for an appropriate safety device, had his case dismissed entirely; and another, who admittedly ignored instructions to use safety devices that were arguably present on the site, was granted summary judgment in his favor.

David L. Scher is an associate, and Stephen J. Murphy is a partner, at Block O'Toole & Murphy.

Endnotes:

1. 83 A.D.3d 104, 923 N.Y.S.2d 2 (1st Dept. 2011).

2. Id. at 107.

3. 13 N.Y.3d 599, 895 N.Y.S.2d 279 (2009).

4. Harris, 83 A.D.3d at 109-10.

5. See 13 N.Y.3d at 602.

6. 225 A.D.2d 441, 639 N.Y.S.2d 356 (1st Dept. 1996).

7. See Harris, 83 A.D.3d at 111.

8. See id.

9. 83 A.D.3d 540, 541, 922 N.Y.S.2d 300 (1st Dept. 2011).

10. See id. at 541.

11. Harris, 83 A.D.3d at 110, citing Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490 (2005).

12. Cocoli v. Champion Const. Corp., 25 Misc.3d 1244(A), *4, 906 N.Y.S.2d 778 (Sup. Ct., Kings County, 2009), citing Montgomery; Urias v. Orange County Agric. Socy., 7 A.D.3d 515, 776 N.Y.S.2d 92 (2d Dept. 2004); Weingarten v. Windsor Owners Corp., 5 A.D.3d 674, 774 N.Y.S.2d 537 (2d Dept. 2004).

13. 83 A.D.3d 433, 437, 921 N.Y.S.2d 42, 45 (1st Dept. 2011), quoting Schultze v 585 W. 214th St. Owners Corp., 228 A.D.2d 381 (1st Dept. 1996).

14. Id.

15. Id.

16. Schick v. 200 Blydenburgh, LLC, 2011 WL 4599855 (2d Dept. 2011), citing Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288-89, 771 N.Y.S.2d 484 (2003); Delahaye v. Saint Anns School, 40 A.D.3d 679, 682, 836 N.Y.S.2d 233 (2d Dept. 2007).

17. Id.

18. 60 A.D.3d 717, 718, 875 N.Y.S.2d 521 (2d Dept. 2009), citing Lesisz v. Salvation Army, 40 A.D.3d 1050, 1051, 837 N.Y.S.2d 238 (2d Dept. 2007); Blair v. Cristani, 296 A.D.2d 471, 745 N.Y.S.2d 468 (2d Dept. 2002).

19. Id.

20. Id.

21. 4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004).

22. 4 N.Y.3d 805, 795 N.Y.S.2d 490 (2005).

23. 6 N.Y.3d 550, 814 N.Y.S.2d 589 (2006).

24. 85 A.D.3d 960, 961, 925 N.Y.S.2d 628 (2d Dept. 2011).

25. 85 A.D.3d 519, 519, 925 N.Y.S.2d 453, 454 (1st Dept. 2011).

26. 84 A.D.3d 1064, 1065, 924 N.Y.S.2d 442, 443 (2d Dept. 2011).

27. 2011 WL 4637552 (4th Dept. 2011).

28. 84 A.D.3d 1632, 924 N.Y.S.2d 586 (3d Dept. 2011).