January 2004
By ALEXANDER A. MIUCCIO, CIC Legal Counsel
Almost 120 years ago, the New York State Legislature adopted the first "scaffold law" in response to unsafe conditions that construction employees working at heights often encountered. Since then, the scaffold law [now Labor Law Section 240(1)] has been subject to various changes, but the original core language has remained fairly intact. Today it reads in part as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or painting of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The overriding objective of the scaffold law is to compel owners and contractors to provide a safe workplace for construction workers. The courts have thus over the years interpreted and applied the scaffold law to effectuate and promote that recognized purpose. Indeed, more than 80 years ago, New York's highest court, the Court of Appeals, began to characterize the duty imposed by the scaffold law on owners and contractors as "absolute." The judicially coined term, "absolute (or strict) liability," later followed. Under this liability concept, owners or contractors not actually involved in construction can be held liable regardless of whether they exercise supervision or control over the work.
Until now, the common thinking was that the scaffold law literally served as a catch-all for every elevation-related workplace accident. However, in a recent decision, Blake v. Neighborhood Housing Services of New York City, Inc., the Court of Appeals significantly clarified and circumscribed the limits of scaffold law.
Background
Rupert Blake, the owner of a small contracting company, was injured as a result of a construction related accident in March 1995. At that time, Mr. Blake had been hired to perform certain renovation work at a two-family house in the Bronx. The renovation project was funded through Neighborhood Housing Services (NHS), a not-for-profit lender providing low interest financing to facilitate such renovation projects.
On the day of the accident, Mr. Blake was working alone. To work on a second-story window, Mr. Blake set up an extension ladder, which he owned and used frequently. As Mr. Blake himself acknowledged, the ladder was steady and securely placed, had rubber shoes, and was in proper working condition. When Mr. Blake began scraping rust from a second-story window, however, the upper portion of the ladder retracted causing Mr. Blake to suffer a severe ankle injury. Later, at trial, Mr. Blake openly admitted that he was not sure if he had locked the extension clips in place before ascending the ladder.
Mr. Blake sued the homeowner and NHS (as a statutory agent) alleging a violation of Labor Law Section 240 (1). Mr. Blake contended that he was entitled to the scaffold law protection regardless of any negligence on his own part. Prior to trial, the homeowner was dismissed from the action by the trial court based on the two-family dwelling exception prescribed by Section 240(1). After trial, the trial court and then the state's intermediate appellate court both ruled that the reach of Labor Law Section 240 was not as encompassing as Mr. Blake claimed, thereby precluding Mr. Blake from recovering any damages from NHS under that statute. An appeal by Mr. Blake to the Court of Appeals followed.
Decision
In the Court of Appeals, Mr. Blake again argued that he was entitled to recover damages for his injuries because Labor Law Section 240(1) provides for strict (or absolute) liability. The court disagreed and unanimously upheld the decisions of the lower courts, effectively rejecting an expansion of the scaffold law.
The court framed the issue before it in very simple terms: should liability attach under Labor Law Section 240(1) even when the ladder was so constructed and operated as to give Mr. Blake proper protection and Mr. Blake was the sole cause of his own injury? In addressing that issue, the court extensively analyzed the legislative and judicial history of Section 240, particularly focusing on the strict (or absolute) liability aspect of that law. Indeed, the court acknowledged that the "terms may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have never held or suggested otherwise."
Liability under Section 240 is instead contingent on both a violation of the statute itself and proximate cause. A violation of the statute alone is therefore not sufficient. A showing that the violation contributed to the cause of the fall is also required.
Here, the evidence produced plainly revealed that the equipment used by Mr. Blake was neither inadequate or unsafe. The proof instead showed that Mr. Blake had negligently failed to properly engage the safety catches, thereby allowing the extended portion of the ladder to slip. Mr. Blake alone was therefore responsible for his own injury.
The court accordingly concluded that Mr. Blake had failed to prove any entitlement to damages under the scaffold law. No evidence was offered to independently demonstrate a violation of Labor Law Section 240. Nor could Mr. Blake's own negligence Ð which was the sole proximate cause of the accident Ð serve to establish the required statutory violation. To impose liability for Mr. Blake's injury "even though all safety precautions were met would not," according to the court, "further the Legislature's purpose."
Commentary
The full implications of the Blake decision are still open to debate. For some time, the scaffold law has generated considerable litigation, often resulting in substantial liability verdicts. Indeed, its concept of "strict liability" has certainly been paramount in encouraging such widespread litigation in the area of elevation-related workplace accidents.
At a minimum, Blake holds that the meaning of strict and absolute liability within the context of Labor Law Section 240 is not without limits. If nothing else, absolute liability under the scaffold law does not apply if the injured worker was provided a safe workplace and equipment and his or her own negligence was the sole cause of his or her injuries.
The Blake decision now provides a contractor/owner with another means to defend an action under the scaffold law. Another judicially recognized defense is the "recalcitrant" worker doctrine. Under this principle, a worker who refuses to use available safety devices shall not be afforded the protection of the scaffold law.
In the end, reliance on Blake or the "recalcitrant" worker doctrine to defend against scaffold law actions is costly and not without risk. However, if either of these two defenses is to be successful, the workplace must be maintained in a safe condition and free of defective equipment. Maintaining a safe workplace is generally within the control of the owner or contractor and can only prove to be beneficial in preventing accidents and ensuing liability.
About the Author: Mr.
Miuccio is a partner in the law firm Goldberg & Connolly and legal counsel
to the Construction Industry Council of Westchester and Hudson Valley, Inc.
Burt P. Natkins, Esq., senior associate with the firm, assisted in the
preparation of this article.