Mar. 30, 2017

Closely Divided Court of Appeals Clarifies that Labor Law § 240(1) Does Not Impose Strict Liability for Every Construction Site Fall

In O'Brien v The Port Authority of New York and New Jersey (No. 27), previewed here, the plaintiff was injured when he slipped and fell down a wet temporary steel staircase while working at the World Trade Center Freedom Tower. The plaintiff sued, and Supreme Court denied summary judgment to all parties on O'Brien's Labor Law 240(1) claim because the parties submitted conflicting expert affidavits raising triable issues of fact concerning whether the worn anti-slip staircase provided sufficient protection against the fall. Supreme Court, however, granted O'Brien summary judgment on his Labor Law 241(6) claim, holding that the defendants violated a provision of the Industrial Code requiring employers to keep elevated working surfaces, passageways, and scaffolds in a non-slippery condition. The Appellate Division, First Department reached the directly opposite result, granting O'Brien summary judgment on the Labor Law 240(1) claim, but denying summary judgment on the Labor Law 241(6) claim. The defendants appealed, but O'Brien did not cross appeal, so the only issue before the Court of Appeals was whether O'Brien was properly granted summary judgment on the Labor Law 240(1) claim.

In a 4-3 opinion, the Court of Appeals held that he was not. Emphasizing that Labor Law 240(1) is not a strict liability statute for any work site injury, the Court held that the parties' conflicting expert evidence on whether the staircase was an adequate safety device raised questions of fact for the jury to decide. The Court held that liability under section 240(1) does not arise unless the worker is not provided "adequate" protection from an elevation-related risk. Thus, the Court held, "[t]o the extent the Appellate Division opinion below can be read to say that a statutory violation occurred merely because plaintiff fell down the stairs, it does not provide an accurate statement of the law. As we have made clear, the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1).” (Opn, at 7).

This appears to me to be one of the Court’s rare error correction opinions, where four Judges of the Court felt that it was necessary to correct the misstatement of the law by the Appellate Division to ensure that future Labor Law 240(1) cases do not apply the wrong law in the future. Judge Rivera, dissenting from the majority opinion and joined by Judges Fahey and Wilson, however, disagreed. She sees the majority’s rule as stepping away from the Court’s traditional Labor Law 240(1) jurisprudence and permitting those in industry to define the minimum standards of what constitutes “adequate” protection. This, she would have held, was inappropriate, as it is the Court’s role to define the minimum safeguards that must be provided to satisfy the Legislature’s ambiguous “adequate” protection threshold.

And here is where the problem lies: the Court of Appeals’ precedent in the Labor Law 240 context does not establish any single consistent minimum standard of what is “adequate.” It is difficult, if not impossible, to read the Court’s case law in this area and come up with a bright line rule for what is good enough and what is not. Given that this is a close 4-3 case, it’s hard to say that this opinion advances the Court’s Labor Law 240(1) jurisprudence in any meaningful way. Instead, attorneys are left to give advice to their clients based on what often seems to be inconsistent results. But, at the very least here, one thing can be gleaned from the four member majority of the Court: a fall down a safety device at a work site is not enough to establish liability under Labor Law 240(1) as a matter of law. That is a rule that can be easily applied.

The Court of Appeals’ opinion can be found here: