by Robert W. Berbenich
New York State's Labor Law §§ 200, 240(1), and 241(6), particularly Labor Law § 240(1), tend to be hot topics among plaintiff's and civil defense lawyers in New York. Labor Law § 240(1) -- better known as the controversial "ladder law" or "scaffold law" -- has garnered considerable press over the years. While those of us handling general liability matters are likely familiar with these sections of the Labor Law, please allow me to briefly introduce the rest of us to these statutory sections.
Labor Law § 200 is a codification of the common-law duty to provide a safe place for employees to work. This section is the statutory equivalent of common law negligence. Where an injured plaintiff alleges that a defect in the premises caused their accident, then they must show that an owner created the condition or had actual or constructive notice of the defect, and the owner must have had a reasonable amount of time to correct the defective condition. However, where an injured plaintiff claims that his injury was caused by defective equipment, then the plaintiff must show that the owner had the authority to supervise or control the "means and methods" of the work. General supervision is not sufficient to support a claim under Labor Law § 200. The plaintiff must prove that the owner or contactor directed or controlled the method or manner of the work or provided the plaintiff with the equipment necessary to do the job.
Labor Law § 240(1) protects construction workers from gravity-related risks such as falling from a height or being struck by a falling object. Liability under this section is statutory and construction site owners and general contractors can be held strictly liable for violations of Labor Law § 240(1). The plaintiff's comparative fault cannot be considered. The strict liability component, along with the lack of comparative fault, make this a very plaintiff-friendly statute.
Labor Law § 241(6) imposes a non-delegable duty on owners and general contractors to maintain a safe work site. In order to establish a claim under Labor Law § 241(6), a plaintiff must prove a violation of certain sections of the Industrial Code of the State of New York. The sections upon which the plaintiff relies must be applicable to the particular facts of the case and sufficiently specific with regard to the conduct required by the section.
I am very fortunate to be an assistant editor of Goldberg Segalla's Labor Law Update, which provides a semi-annual update regarding significant changes and trends in Labor Law §§ 200, 240(1), and 241(6). It highlights significant cases reported by the Court of Appeals and the Appellate Divisions of the State of New York and offers relevant topics and practice pointers for each case. This is a very useful resource for those of us practicing in this area as well as a good introduction to those of us who may be new to the topic. Goldberg Segalla's most recent Labor Law Update is available here.
From June through December 2014, we uncovered one common question that the courts continued to battle with: whether a plaintiff was engaged in a "protected activity" within the meaning of the New York State Labor Law. For example, in DeSimone v. City of New York, 121 A.D.2d 420 (1st Dep't, 2014), the First Department found that a worker involved in the "financial aspects" of a construction project who was not performing labor was, in fact, engaged in a protected activity, as his work was related to the ongoing construction. The Second Department, in Kharie v. South Shore Record Management, Inc., 118 A.D.3d 955 (2d Dep't, 2014), similarly found the plaintiff to be engaged in a protected activity when dismantling a shelf that was composed of component parts that were attached in a definite manner. This trend draws our attention to the fact that attorneys in this area must focus on the work the plaintiff is actually performed, and the context in which it is performed, to determine whether a plaintiff is engaged in an activity protected by the Labor Law.
We also uncovered that the recalcitrant worker/sole proximate cause defense is still an ongoing issue being dealt with regularly by the courts. In Przyborowski v. A&M Cook, LLC, 120 A.D.3d 651, the Second Department held that a plaintiff's discretion will not absolve a defendant of liability unless it is shown that the plaintiff was specifically instructed to use one means and the plaintiff failed to follow the instruction. The Third Department, in Fabiano v. State of New York, 123 A.D.3d 1262, also found that the recalcitrant worker defense did not apply. Although the plaintiff failed to wear a safety harness while on a scaffold plank that collapsed, the court held that the plaintiff's omission was not the proximate cause of the accident since the scaffold, a primary safety device, failed. In Hill v. Acies Group, LLC, 122 A.D.3d 428 (1st Dep't, 2014), the court held that instructing an employee to avoid using unsafe equipment or engaging in unsafe work is not a safety device and, therefore, the employee's failure to follow the instruction will not give rise to a recalcitrant employee defense. The appellate courts are expected to continue to scrutinize and dissect this defense.
If you are unfamiliar with New York's Labor Law, I hope this brief entry provides you with an introduction to an area I have found to be very interesting and one that is certainly at the forefront of the minds of practicing attorneys as well as the legislators in Albany. This will definitely be a topic you will hear more about going forward. Also, for those who are familiar with this topic, I hope you find this information helpful as well. For more information, please take a look at Goldberg Segalla's most recent Labor Law Update.
Robert W. Berbenich, an associate in Goldberg Segalla's Garden City office, practices civil litigation with a focus on general liability matters, including those involving construction, personal injury, premises liability, and transportation litigation. Robert's previous experience includes working in a civil litigation law firm specializing in high-exposure, multimillion-dollar catastrophic accident cases. There, he was involved in all aspects of litigation, from intake through verdict and appeal. Robert can be reached at firstname.lastname@example.org.