First Department Further Limits Labor Law §240(1): Safety Equipment Need Not Be Available "On-Site"
August, 2007
In a continuing effort to clarify the boundaries of New York Labor Law § 240(1), the Appellate Division, First Department recently held that injuries incurred by workers who fail to request properly functioning equipment, despite its availability, albeit off-site, may not state a claim for damages under that section when they become injured while using other, defective equipment. Miro v. Plaza Construction Corporation, 38 A.D.3d 454, 834 N.Y.S.2d 36 (1st Dep’t 2007).
In Miro, Plaintiff was injured when he slipped and fell as he descended a six-foot wooden ladder which had somehow been covered with a sprayed-on fireproofing material. Plaintiff claimed that it was the fireproofing material on the ladder which caused him to slip and fall. Plaintiff admitted during his deposition that he could have requested of his employer, Consolidated Electric, that a different ladder be provided so that he could complete his work. As a result of the incident, Plaintiff allegedly suffered severe and permanent injuries.
Upon the close of discovery, Plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim. The trial court granted Plaintiff’s motion, finding that Defendant’s violation of the statute, which requires safe and appropriate work equipment so as to prevent a worker from suffering a height related accident, was the sole and proximate cause of Plaintiff’s accident. The Appellate Division, First Department, not only reversed the trial court, but also searched the complete record of the case and granted partial summary judgment on the Labor law § 240(1) claim in favor of Defendant.
In so holding, the First Department held that a plaintiff who knowingly chooses to use defective or inadequate equipment, notwithstanding the knowledge that he or she can request or obtain proper equipment, has no claim under Labor Law § 240(1).
When first enacted, Labor Law § 240(1) provided a useful tool for all injured workers who suffered a work-related injury that was caused by height related dangers. That section required contractors and owners to provide workers with appropriate safety devices to protect against such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. The statute in its purest form is a strict liability statute. However, in recent years, the New York Appellate courts have recognized certain exceptions which provide an opportunity for a defendant to avoid liability under certain limited situations.
The most well-recognized exception to Labor Law § 240(1) was established by New York’s Highest Court in Blake v. N.H.S. of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484, (N.Y. 2003). In brief, in that case, the Court of Appeals recognized that a violation of the statute will not be imposed on a defendant when it is the plaintiff’s own conduct that was the “sole proximate cause” of his injuries.
Miro is an extension of the Blake case, as the First Department in this matter attempts to further explain the situations in which the defense of “sole proximate cause” will be applicable.
The First Department in Miro concluded that just because a worker is injured using defective equipment does not necessarily justify the initiation of a claim under § 240(1). A further analysis is required, even though the facts underlying the case otherwise satisfy the requirements of § 240(1) -- either that a worker is injured from falling materials or the worker is injured after falling from a height.
Although arguably the sole proximate cause of Plaintiff’s injury was the fireproofing material on the ladder, rendering it defective for the purposes of the statute, the First Department held otherwise. The Court specifically found that under the circumstances, the sole proximate cause of the occurrence of the accident was Plaintiff himself. Specifically, Plaintiff testified that his employer had other six foot ladders he could use and, although they were not physically on the work-site, his employer would have made them available on the work site. This is quite significant as this is the first case in which the Court clarified that an alternative safety device need not be physically present on the work site in order to satisfy the requirement that the plaintiff be provided with adequate safety devices. Here, the device was not on site, but since Plaintiff was aware that his employer would have made the device available to him if he requested, the Court found the device was sufficiently available.
Further, the Court found it important that Plaintiff did not need the ladder that very moment, as he had been given other tasks to perform which did not require the use of the defective six foot ladder on the date of the accident. Plaintiff could have and should have requested a different ladder and moved on to other tasks, returning to the height related activities once the non-defective six foot ladder arrived.
In its conclusion, the Court held that § 240(1) does not impose liability on an owner or contractor for a worker’s failure to request a new ladder to replace one in an unacceptable condition, where a different one could be provided. Quite simply, Plaintiff would not have been injured had he undertaken what the Court deemed a “normal and logical response.” His failure to do so was deemed the sole proximate cause of his accident.
Learning Point:
In the Miro decision, the Appellate Division, First Department attempted to further clarify the limits of Labor Law §240(1). This is significant in that this is a strict liability statute and therefore the broader its terms, the more likely a plaintiff will be availed of its protection. It appears from the language of the decision that it has been narrowly tailored and it is expected that a barrage of motions from defendants will be made seeking summary dismissals of plaintiffs’ Labor Law § 240 (1) causes of action. In this case, summary judgment was granted by the First Department in favor of Defendant only after it was determined that: a) Plaintiff knew that he could have requested a different ladder; b) Plaintiff had other work he could perform until the other ladder arrived; and c) the other ladder was “readily available.”
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