Statutory Protection Afforded Even To Negligent Worker Under Labor Law
March, 2009
Following the general pattern of the other Appellate Divisions' interpretation of New York's Labor Law Section 240, the Appellate Division, Second Department recently held that a plaintiff's partial negligence, which may have contributed to plaintiff's accident, is not a bar to the statutory protections afforded by Labor Law Section 240, and that summary judgment will still be appropriate under those circumstances. Rico-Castro v. Do & Co New York Catering, Inc., 874 N.Y.S.2d 576, (2d Dep't 2009).
In Rico-Castro, Plaintiff was employed by non-party Olympic Fence & Railing Co., Inc., who was hired by Defendant Do & Co New York Catering, Inc. to remove 12 foot fencing with barbed wire, and re-install it elsewhere in its Premises. Plaintiff at first utilized a 10 foot A-frame ladder to remove the barbed wire, but then used the same ladder in its closed position to begin the removal of the fence itself. Due in large part to the slippery concrete upon which the ladder was placed, the ladder slipped while Plaintiff was standing on the top rung. As Plaintiff fell, he was injured when his arm caught on a hook which protruded from a nearby concrete column.
Plaintiff filed suit against Do & Co New York Catering, Inc. as the owner of the Premises, alleging violations under Labor Law Sections 200, 240(1) and 241(6). At the conclusion of discovery, Plaintiff moved for summary judgment, under CPLR 3212, on the Labor Law 240(1) claims. Defendant cross-moved for summary judgment, seeking a dismissal of all Plaintiff's causes of action. The trial court granted Plaintiff's motion for summary judgment and denied Defendant's motion in its entirety. The Appellate Division, Second Department, affirmed the trial court's decision and upheld the granting of summary judgment to Plaintiff under Labor Law Section 240(1).
In recent years, New York's highest court, the Court of Appeals, has attempted to limit the scope of Labor Law 240(1). The Second Department held that while the purpose of the statute was to place responsibility for a worker's safety squarely on the owner and contractor rather than on the worker, such responsibility should only be assessed when there is an elevated risk that falls into one of two distinct categories. Id. The two types of cases have been commonly referred to as "falling worker" cases and "falling object" cases. Importantly, the Court of Appeals attempted to set boundaries on this strict liability statute and held that when a plaintiff's injuries come as a result of an ordinary construction site danger as opposed to an "extraordinary elevation risk," the plaintiff cannot recover under the statute. Blake v. Neighborhood Housing Services of New York, 1 N.Y.3d 283, 803 N.E. 2d 757(2003).
More relevant to the Rico-Castro, the Blake Court determined that where the plaintiff's actions constitute the "sole proximate cause" of his/her accident, the plaintiff may not at all recover under the strict liability theory of Labor Law 240(1). Id.
In Rico-Castro, the Second Department concluded that, although Plaintiff acknowledged that he was using the 10 foot A-frame ladder in a closed position, and he personally situated the ladder on the slippery concrete, his own acts or omissions did not constitute the sole proximate cause of his accident. The Court noted that Defendant conceded during the discovery process that it did not provided Plaintiff with adequate safety devices prior to his use of the ladder. Id. The Court also considered that Plaintiff's means of removing the fence was in line with the same methods used by his co-workers, and that Defendant/owner of the Premises witnessed such activity but remained silent. Id. As such, the Court concluded that Plaintiff could not, as a matter of law, be considered the sole proximate cause of his accident. Id.
Interestingly, to further emphasize its position, the Court specifically stated that "[e]ven assuming that the plaintiff was negligent in using the A-frame ladder in the closed position, that act alone is insufficient to strip him of statutory protection." Id. It seems that the Court was parsing out the acts of the Plaintiff from the acts/omissions of Defendant, concluding that so long as it is found that the statute is applied, and a violation is determined, then Plaintiff's acts or omissions simply cannot be deemed to constitute the sole proximate cause thereof. In the context of the Rico-Castro action, according to the Court, because Plaintiff was able to demonstrate that Defendant's failure to either provide adequate safety devices (i.e., a harness to prevent his fall) or properly secure the ladder was a violation of the Labor Law, both of which contributed to his injuries, Plaintiff was entitled to summary judgment on the issue of liability under Labor Law 240(1). Id.
Learning Point:
In Rico-Castro, the Second Department further clarified the Court of Appeals' Blake ruling concerning "sole proximate cause" under Labor Law Section 240(1). This clarification is significant, because Section 240(1) is a strict liability statute and, therefore, the broader its terms, the more likely a plaintiff will be availed of its protection. More recently, due in large part to the Blake decision, the defense bar has been attempting to argue that most plaintiffs' accidents in the Labor Law 240(1) context were really a direct result of plaintiffs' own acts and/or omissions. Rico-Castro appears to strike back at the defense bar's overwhelming and constant attack on strict liability under Labor Law 240 (1).
For more information contact Brian S. Gitnik at bgitnick@clausen.com.
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