First Department Debates How Much Effort Court of Appeals Requires a Worker To Make To Search For Safety Devices At The Construction Work Site

In Cherry v. Time Warner, Inc., — N.Y.S.2d —-, 2009 WL 2497974 (1 Dept. August 18, 2009), the plaintiff was securing sheet rock to the ceiling on the third floor when he fell off a baker’s scaffold onto the concrete floor eight feet below. The scaffold measuring approximately two feet wide by six to eight feet long had guardrails on only two of its four sides.

The Appellate Division, First Department was called upon to decide whether safety guardrails were in place on the scaffold from which the plaintiff fell and if they were not in place, whether they were made readily available on site for the plaintiff’s use. This issue was crucial because if the guardrails were found to be readily available, the worker’s failure to use a scaffold having guard rails on all four sides of it would be considered the sole proximate cause of the accident. As such, the worker would not be entitled to the protections of Labor Law 240(1). Labor Law 240(1) establishes a statutory duty for contractors and owners to provide adequate safety devices for their workers.

The failure to provide safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability, as a matter of law, for any injuries that result from such failure. However, if adequate safety devices are provided and the worker either chooses not to use them or misuses them, then there is no liability under Labor Law 240(1) because the workers conduct is considered to be the sole proximate cause of the accident. A line of cases has taken on the name sole proximate cause cases.

In these cases, the issue to be addressed first is whether adequate safety devices were provided, furnished or placed for the worker’s use on the work site. The majority and dissenting opinions in Cherry differed markedly from each other in their interpretations the Court of Appeals decisions on this issue in the cases of Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 491, 828 N.E.2d 592, 593 (2005) and Robinson v. East Med. Ctr., 6 N.Y.3d at 554, 814 N.Y.S.2d at 591, 847 N.E.2d 1162 (2006).

The majority opinion (Justices Mazzarelli, Catterson, Acosta and Renwick) held that the requirement of a worker’s normal and logical response to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so. The Court found that the record in the case did not establish exactly where the fully guarded scaffolds were to be found on the day of the accident, and the statements and testimony of the plaintiff and the defendants were in conflict as to where the scaffolds with guard rails were located that day, a triable issue of fact was raised.

The plaintiff’s motion and the defendants cross-motion for summary judgment were denied. In dissent, Justice McGuire believed that the plaintiff’s actions in were the sole proximate cause of his accident. As far as the dissent is concerned, the relevant inquiry under both Montgomery and Robinson is whether the injured worker knew that adequate safety devices were available at the job site but for no good reason failed to use them.

The dissent considered it irrelevant that the job site took up 8 entire floors of the building being constructed. Thus the dissent places no restriction as to where on the job site the safety device is so long as it is on the job site. The dissent cynically stated: Moreover, by obligating workers to avail themselves of safety devices they know to be available on the job site, the holdings of Montgomery and Robinson provide workers with a strong incentive to engage in behavior that promotes the statutory goal of worker safety.

There is no doubt that the statutory goal of Labor Law 240(1) is worker safety. But the statute puts the onus on the owner or contractor, and not the worker, to achieve that goal. The Court of Appeals explained in Koenig v. Patrick Constr. Co., 298 N.Y. 313, 318 (1948): And, what the statute [Labor Law 240(1)] declares, its reason confirms. Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from the accident. They usually have no choice but to work with the equipment at hand, though danger looms large.

The legislature recognized this and to guard against the known hazards of the occupation required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. Even more than 60 years after Koenig, it seems hardly realistic to believe that construction workers stand on an equal footing with their bosses to ensure their safety. Can anyone believe that a foreman with a job schedule would give a laborer the time to scour a work site to find safety equipment before starting to work? There would be a replacement worker the next day.

The personal injury lawyers at Levine & Slavit have decades of experience handling personal injury claims, including for workers injured at construction sites. For 50 years spanning 3 generations, we have obtained results for satisfied clients. Contact the personal injury lawyers at Levine & Slavit for their help. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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