Brian J. ShootBack in November 2019, which now seems like the very distant past, I was asked to do a short CLE presentation on the “Top Ten Labor Law Decisions” of “The Past Ten Years.” The idea seemed timely, and I agreed. The first half of that list, counting down from Number 10 to Number 6, appeared in these pages in February. This column details the remaining cases on the list, ending, in inverse order, with Number 1.
In compiling my list, I confined myself to Court of Appeals’ decisions. With the further passage of time, some of my selections have passed beyond the 10-year look-back, with the consequence that the list now embodies an 11-year look-back. (2009 was a big year in Labor Law jurisprudence.)
5. Saint v. Syracuse Supply Co., 25 N.Y.3d 117 (2015): Alleged ‘Altering’ of a Billboard, Again. The narrow issue in Saint was whether the task in issue, modification of a large billboard, constituted “altering” within the meaning of Labor Law §240, thus entitling the injured worker to the protections of that statute. The Court of Appeals unanimously answered in the affirmative.
However, that narrow holding is not why the case makes this list. The broader and more important lesson of Saint is how fact-intensive these issues truly are, and how, with just a couple of factual edits, judgment in favor of one side of the caption can be transformed into judgment for the adversary.
Labor Law §240(1), the so-called Scaffold Statute (even though it applies with equal force to ladders and other devices used to elevate workers or work materials) applies to “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” In order to obtain the benefit of the statute’s protections, the plaintiff must establish that she or he was engaged in a listed activity. “Maintenance” is not a covered activity.
In consequence, the issue frequently arises as to whether the work activity was “repairing” … or just maintenance, “painting” … or just maintenance, or, as here, “altering” … or just maintenance.
The settled definition of “altering,” which comes from the Court of Appeals’ ruling in Joblon v. Solow, 91 N.Y.2d 457, 465 (1998), is that “‘altering within the meaning of Labor Law §240[1] requires making a significant physical change to the configuration or composition of the building or structure.’”
The word “significant” is itself a term of art. Among those activities that were held to constitute “altering” have been the application of “bomb blast film” to render existent windows more resistant to explosions (Belding v. Verizon New York, 14 N.Y.3d 751, 752-53 (2010)), dismantling of shelves in a warehouse (Kharie v. S. Shore Record Mgt., 118 A.D.3d 955, 956 (2d Dept. 2014)), moving a ceiling-mounted fluorescent light from one location to another (Vasquez v. C2 Dev., 105 A.D.3d 729, 730 (2d Dept. 2013)), boarding up windows to protect a vacant building from vandalism (Santiago v. Rusciano & Son, 92 A.D.3d 585, 586 (1st Dept. 2012)), and extensive re-wiring of a business’s telephone system (Becker v. ADN Design, 51 A.D.3d 834, 836-37 (2d Dept. 2008)).
Amongst those activities that were held not to constitute “altering” have been painting of decorative images on wooden panels (Adika v. Beth Gavriel Bukharian Congregation, 119 A.D.3d 827, 827-28 (2d Dept. 2014)), attachment of a temporary exterior sign (Bodtman v. Living Manor Love, 105 A.D.3d 434, 434 (1st Dept. 2013)), hanging of window shades (Amendola v. Rheedlen 125th St., 105 A.D.3d 426, 427 (1st Dept. 2013)), and removal of a satellite dish (Zolfaghari v. Hughes Network Sys., 99 A.D.3d 1234, 1235 (4th Dept. 2012)).
Interestingly, the same court that deemed removal of a satellite dish as not constituting an alteration had earlier held that the (factually distinguishable, in its view) activity of installing a satellite dish was “altering” (Tassone v. Mid-Val. Oil Co., 291 A.D.2d 623, 624 (3d Dept. 2002))—which nicely illustrates how fine the line can be.
And that brings us to billboards, “cosmetic maintenance,” and ultimately to Saint. Back in Munoz v. DJZ Realty, 5 N.Y.3d 747 (2005), the plaintiff fell from a ladder while applying a new advertisement to the face of a billboard that sat atop the defendant’s building. There was no doubt that the accident was sufficiently “elevation-related” to come within the statute’s scope. The plaintiff first had to ascend a 28-foot ladder just to reach the roof, and then had to climb a 14-foot ladder in order to reach the face of the 12-foot by 24-foot billboard. The accident occurred when the 14-foot ladder slipped, causing the plaintiff to fall.
But was the work in Munoz “altering” for purposes of Labor Law §240[1]? A unanimous Court of Appeals said it was not, stating: “Plaintiff’s activities may have changed the outward appearance of the billboard, but did not change the billboard’s structure, and thus were more akin to cosmetic maintenance or decorative modification than to ‘altering’ for purposes of Labor Law §240 [1].” Munoz, 5 N.Y.3d at 748.
Facts: So, finally, we come to Saint. At least at first blush, the facts may seem very similar to those in Munoz.
The plaintiff was, the Court of Appeals said, “part of a three-person construction crew working to replace an advertisement on a billboard located in Erie County.” Saint, 25 N.Y.3d at 121. He had been working “on the lower rear catwalk [of the billboard] when he heard the other crew members call for assistance because they were having difficulty due to the day’s wind conditions.” Id. at 122. He “went to the upper catwalk to assist them, and in order to get around one of the crew members … detached his lanyard from the catwalk’s safety cable.” Id. A strong gust of wind caught the vinyl advertisement that was the object of the work. The advertisement struck plaintiff in the chest, causing him to fall some 10 feet to a lower catwalk.
The question, once again, was whether the project was “altering.” But this time the answer was Yes.
Held: The key distinction, the court said in an opinion penned by Judge Jenny Rivera, was that the job here in Saint entailed modification of the billboard’s structure, not just its appearance. Here, the installation of the new advertisement on the billboard (which was also much larger and higher than the billboard in Munoz) entailed the attachment of four additions known as “extensions.” The extensions were so heavy that a crane was needed to lift them up to the level of the billboard, and the job itself was large enough to require a three-person crew (as opposed to the lone worker in Munoz).
In concluding that the project constituted “altering,” the court distinguished other cases that “involved simple tasks, involving minimal work.” Saint, 25 N.Y.3d at 126. It also distinguished the “cosmetic maintenance” in Munoz from the structure-altering work in the case before it. Id. at 127.
Perhaps most important in terms of the ruling’s impact on future cases, the Saint court expressly rejected the argument that the term “altering” applies only to “permanent changes.” The court reasoned: “Nowhere does section 240(1) impose or even mention a requirement that an alteration be of a permanent and fixed nature … in this case the fact that the advertisement extensions stay up as long as the sign does, makes the work no less an alteration within the meaning of section 240(1).” 25 N.Y.3d at 128.
Comment: I think the lesson we should draw from Saint is that the determination of whether a given project entails a “significant physical change to a building or structure” is necessarily fact-intensive, so much so that the same general category of activity (here, replacement of one billboard advertisement with another) may well be “altering” in one instance but not in another.
The still broader lesson is how, on virtually any Labor Law issue one can imagine—including whether a given risk is sufficiently “elevation-related” to come within the statute’s scope, and also including whether the plaintiff’s own conduct was the “sole proximate cause” of the subject accident—alteration of a fact or two can enable the litigant to seize victory from the jaws of defeat, or suffer the opposite fate.
4. Wilinski v. 334 E. 92nd Hous. Dev. Fund, 18 N.Y.3d 1 (2011): The Rethinking of the ‘Same Level’ Rule. Back in Misseritti v. Mark IV Const. Co., 86 N.Y.2d 487 (1995), the plaintiff was injured when a completed firewall, that allegedly should have been braced, collapsed on him. The court unanimously ruled in a relatively brief opinion by Judge Carmen Ciparick that it could not be said “that the collapse of a completed firewall” was “the type of elevation-related accident” that Labor Law §240(1) was “intended to guard against” Id. at 491.
Three years later, in a case in which the hook holding a steel plate became undone and the plate fell on plaintiff’s foot, the Court of Appeals ruled in a short memorandum opinion that Labor Law §240(1) did not apply because “the steel plate was resting on the ground or hovering slightly above the ground” and “was not elevated above the work site.” Melo v. Consol. Edison Co. of New York, 92 N.Y.2d 909, 911 (1998).
In the wake of Misseritti and Melo, the conventional wisdom was that Labor Law §240(1) did not apply to a so-called “falling object” case if the base of the object that fell and struck plaintiff was at the same level as the plaintiff. See, e.g., Whitehead v. City of New York, 79 A.D.3d 858 (2d Dept. 2010); Kaminski v. 53rd St. and Madison Tower Dev., 70 A.D.3d 530 (1st Dept. 2010); Garcia v. Edgewater Dev. Co., 61 A.D.3d 924 (2d Dept. 2009); Spiegler v. Gerken Bldg., 57 A.D.3d 514, 516 (2d Dept. 2008); Cruz v. Neil Hosp., 50 A.D.3d 619 (2d Dept. 2008); Mikcova v. Alps Mech., 34 A.D.3d 769 (2d Dept. 2006); Peay v. New York City School Const. Auth., 35 A.D.3d 566 (2d Dept. 2006).
Here, the Court of Appeals, in another opinion penned by Judge Ciparick, said that the rule was more “nuanced” than that … and that so-called “same level” cases can fall within the statute’s scope.
Facts: Plaintiff and other workers were demolishing brick walls at a vacant warehouse. By virtue of the demolition thus far, there were two pipes—each four inches in diameter, each rising to a height of 10 feet—that were unsecured.
“Earlier that morning, plaintiff voiced concerns to his supervisor that leaving the pipes standing during demolition of the surrounding walls could be dangerous. Nevertheless, no safety measures were taken to secure the pipes. Shortly thereafter, debris from a nearby wall that was being demolished hit the pipes, causing them to topple over.”
Plaintiff asserted claims under Labor Law §§240 and 241(6). With respect to the former, defendants argued that the pipes were at the “same level” as plaintiff and that Labor Law §240(1) was therefore not implicated.
Held: Regarding the Labor Law §240 claim, the court reasoned that the scope of Labor Law §240 had “evolved” in the almost two decades since Misseritti, and that the statute’s “core purpose” was now “to provide workers with adequate protection from reasonably preventable, gravity-related accidents.” 18 N.Y.3d at 7.
The court ruled that Misseritti did not call for the “categorical exclusion of injuries caused by falling object that … were on the same level as the plaintiff” and that the elevation differential in the case was “physically significant.” Id. at 5, 10-11. However, the remaining question, which could not be answered on the existent record, was whether protective devices could have in fact been used to secure the pipes. This, the court said, was an issue of fact.
The gist was as follows:
Our jurisprudence defining the category of injuries that warrant the special protection of Labor Law §240(1) has evolved over the last two decades, centering around a core premise: that a defendant’s failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability.
* * *
We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff. Misseritti did not turn on the fact that plaintiff and the base of the wall that collapsed on him were at the same level.
* * *
Applying Runner to the instant case, we hold that plaintiff is not precluded from recovery under section 240(1) simply because he and the pipes that struck him were on the same level. The pipes, which were metal and four inches in diameter, stood at approximately 10 feet and toppled over to fall at least four feet before striking plaintiff, who is 5’6” tall. That height differential cannot be described as de minimis given the “amount of force [the pipes] were able to generate” (id. at 605) over their descent. Thus, plaintiff suffered harm that “flow[ed] directly from the application of the force of gravity to the [pipes]” (id. at 604; see also Rocovich, 78 N.Y.2d at 514).
Wilinski, 18 N.Y.3d at 7, 9, 10.
Dissent: The Wilinski court’s §240 ruling was rendered by 4 to 3 vote. The dissenters, per opinion by Judge Eugene F. Pigott Jr. decried the departure from Misseritti and Melo and from the Appellate Division’s “reasonable interpretation” of those rulings. The dissenters felt that the majority’s ruling would inject “confusion and uncertainty” into an area of law that was formerly well settled.
3. Fabrizi v. 1095 Ave. of Americas, 22 N.Y.3d 658 (2014): Falling Objects and the ‘Purposes of the Undertaking’ Standard. Although as we shall soon see Labor Law §240 can sometimes apply even where the plaintiff-worker did not fall from a height and was not struck by an object which fell from a height, most cases within the statute’s scope involve just that: falling workers or falling objects. Of those two broad categories, the “falling object” accident has proven far more difficult to treat. Over the last 20 years or so, the Court of Appeals has swayed from one standard to another, ultimately ending, in Fabrizi, 22 N.Y.3d 658, with a rule concerning “the purposes of the undertaking” that is far from clear and which, for that reason, has been construed very differently from Department to Department.
The Pre-Fabrizi Trail. Given that Labor Law §240 was enacted in 1921 and that the modern version of the statute dates back to 1969, it may seem strange that the Court of Appeals did not address the prerequisites of “falling object” liability until 2001, in its decision in Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 (2001). But there is a reason that is so.
Although some may find this surprising, the statute itself is not expressly limited to elevation-related hazards and it was not until 1991, in its ruling in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991), that the Court of Appeals declared that the statute should be so limited in scope. The court there reasoned that some “of the enumerated devices” (such as ‘scaffolding” and “ladders”) were “for the use or protection of persons in gaining access to or working at sites where elevation poses a risk,” that other listed devices (such as “hoists,” “blocks,” and “braces”) were “used as well for lifting or securing loads and materials employed in the work,” and that all of “[t]he various tasks in which these devices are customarily needed or employed” shared the “common characteristic” that the danger arose “because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured.” Rocovich, 78 N.Y.2d at 513-14. The court concluded that it was “because of the special hazards in having to work in these circumstances, we believe, that the Legislature has seen fit to give the worker the exceptional protection that section 240(1) provides,” and that such “exceptional protection” should therefore be limited to those “special hazards.” Id. at 514.
In this historical context, it is hardly surprising that the court did not consider the prerequisites for “falling object” liability until its 2001 ruling in Narducci. What is somewhat surprising, and concerning, is that the path from that point on has been so meandering.
Narducci itself involved two different “falling object” cases that were joined for purposes of Court of Appeals review. In one case, Narducci itself, the plaintiff was assigned the task of removing steel window frames. The plaintiff was standing on a ladder, engaged in that task, when he looked over and saw a large piece of glass from an adjacent window frame falling toward him. He turned to avoid being hit in the face by the glass, but was severely cut on his right arm. He did not fall from the ladder. The injury was the cut to his right arm. The court deemed it sufficiently significant to note that “[n]o one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. The glass that fell was part of the pre-existing building structure as it appeared before work began.” 96 N.Y.2d at 268. The court concluded that “[t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.” Id.
In the other case then before the court, Capparelli, the plaintiff was injured while attempting to install a light fixture as part of a renovation of the premises. The fixture began to fall and plaintiff immediately reached out to stop the fixture from hitting him, but the fixture slid as he tried to hold it, cutting his right hand and wrist. As in Narducci, while plaintiff was then standing on a ladder, he did not fall from the ladder. The cut was the injury.
The Narducci court gave two reasons why neither accident was caused by an elevation-related risk within the statute’s scope. In Capparelli, the statute did not apply because “there was no height differential between plaintiff and the falling object.” Narducci, 96 N.Y.2d at 269. As for Narducci itself, the court said, in words that would thereafter furnish the basis for many dismissals, “[a] plaintiff must show that the object fell, while being hoisted or secured, because of an absence or inadequacy of a safety device of the kind enumerated in the statute.” 96 N.Y.2d at 268 (emphasis added). Inasmuch as “the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell,” the statute did not apply. Id.
Yet, while the court said in Narducci that the statute would apply in a “falling object” case only if the object fell “while being hoisted or secured,” it soon after ruled, in the space of a single paragraph on abbreviated §500.4 review, that the statute would also apply where a dolly which had been left unsecured on the top of a 5 1/2-foot half-wall fell from its perch and struck the plaintiff. Outar v. City of New York, 5 N.Y.3d 731 (2005). And it thereafter ruled in Quattrocchi v. F.J. Sciame Constr., 11 N.Y.3d 747, 758 (2008), wherein the plaintiff alleged “he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway,” that “‘falling object’ liability under Labor Law §240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured.”
The court did not, however, explain what precisely made the planks in Quattrocchi or the dolly in Outar unlike the window frame in Narducci. Was it that the issue with the window frame had pre-existed, and was extrinsic to, the subject work? Was it something else?
Facts: We come, finally, to Fabrizi itself. Plaintiff, an electrician, was injured in the course of repositioning a “pencil box” that served as an access point for telecommunication wires. In order to reposition the pencil box, “plaintiff disconnected the box from a structure known as a ‘Kindorf support,’ which anchored the box to the floor and the wall, and also from two sections of conduit pipe running above and below the pencil box” (Dissent). This left “a considerable length of galvanized steel conduit, weighing 60-80 pounds … hanging above plaintiff as he knelt below to drill [holes in the floor] in preparation for relocating the Kindorf.”
The pipe was held in place, at ceiling height, by a compression coupling. The compression coupling proved inadequate to the task of holding the conduit pipe in place. The latter came loose as plaintiff was working beneath it.
The issue was whether the accident came within the scope of Labor Law §240. Plaintiff contended that he had “requested a set screw coupling to secure the pipe to prevent the pipe from falling during the disassembly, and that the failure of defendants to provide this device was a proximate cause of his accident.” Fabrizi, 98 A.D.3d 864, 865. This, plaintiff urged, brought the case within the statute’s scope.
The Appellate Division majority held, (1) the case came within the ambit of the statute, but, (2) there was a triable issue of fact as to whether defendants failed to provide a protective device within the scope of the statute.
The Court of Appeals split 4 to 2, with all six judges stating that the liability issue should be resolved as a matter of law (and that the Appellate Division majority had therefore erred).
Majority: The majority, per an opinion by Judge Pigott, ruled that the purportedly inadequate compression coupling was “not a safety device ‘constructed, placed, and operated as to give proper protection’ from the falling conduit” since its “only function was to keep the conduit together as part of the conduit/pencil box assembly.” It “follow[ed] that defendants’ failure to use a set screw coupling [was] not a violation of 240(1)’s proper protection directive.”
In the majority’s view, “[p]laintiff’s argument that the coupling itself [was] a safety device, albeit an inadequate one,” would have extended “the reach of section 240(1) beyond its intended purpose to any component that may lend support to a structure.”
Hearkening back to Narducci, the court said that “[i]n order to prevail on summary judgment in a section 240(1) ‘falling object’ case … the plaintiff must demonstrate that at the time the object fell, it either was being ‘hoisted or secured’ … or ‘required securing for the purposes of the undertaking’ [citations omitted].” 22 N.Y.3d at 658. The plaintiff must also “show that the object fell … because of the absence or inadequacy of a safety device of the kind enumerated in the statute’ [citation omitted, emphasis in original].” Id. This was not done here inasmuch as the missing coupling was not a qualifying “safety device.”
Dissent: Chief Judge Jonathan Lippman, joined by Judge Rivera, would have ruled that plaintiff was entitled to summary judgment. As they saw it, “the crucial legal questions arising from the face of this record are whether the task of repositioning the pencil box entailed an elevation-related risk that triggered defendants’ duty to supply adequate safety devices, and whether the failure to do so caused the accident.”
Here, plaintiff was, in their opinion, “[c]learly” “exposed to a gravity-related hazard within the meaning of the statute” inasmuch as “he was situated several feet below a 60-to-80 pound-segment of conduit pipe made of galvanized steel.” Further, “a tool capable of stabilizing the conduit pipe—whether brace, clamp, coupling, or otherwise—would be precisely the sort of device contemplated by section 240(1).”
Aftermath: So, with Fabrizi, we now know, (1) “falling object” liability can exist under the statute only if the object that fell did so while being hoisted or secured or, alternatively, was an object that “required securing for the purposes of the undertaking,” and (2) the planks that fell in Quattrocchi, as well as the dolly that fell in Outar, were evidently objects that “required securing for the purposes of the undertaking.”
But what, exactly, is the difference between an object that requires securing “for the purposes of the undertaking” and an object that merely requires securing because it is otherwise likely to fall and strike a worker? Does the distinction merely serve to exclude hazards that are extrinsic to the scope of the work, like the window frame in Narducci? Does the distinction differentiate between objects that were supposed to have been permanently installed, like the coupling in Fabrizi, and objects that were placed temporarily during the course of the work? Or is it something else, or some combination of factors?
Inasmuch as the meaning of the “for the purposes of the undertaking” limitation is far from clear and has been construed differently in the lower courts, I imagine that the uncertainty will continue until such time as the Court of Appeals resolves it.
2. Gallagher v. New York Post, 14 N.Y.3d 83 (2010): The Rule Governing the Plaintiff-Failed-to-Use-a-Safety-Device-or-Better-Elevating-Device Defense. For purposes of analysis, I think it is useful to break down the “sole proximate cause” defense into two categories. Category I consists of those instances in which the plaintiff-worker is blamed for failing to use a better elevating device, or alternatively for failing to use an allegedly available safety device. This includes, for example, the case in which the plaintiff used the old, creaky wooden ladder (which then broke) instead of the spanking new aluminum ladder that was mere feet away. It also includes the case in which the plaintiff had been told again and again to tie off, but didn’t. Category II consists of all cases in which the sole proximate cause defense does not fall within the parameters of Category I.
In actual practice, most “sole proximate cause” defenses fall within Category I. And the landmark ruling in Gallagher plainly specifies three elements that the defendant must prove in order to assert a legally viable “sole proximate cause” defense in such cases.
Appellate Division Ruling: Plaintiff, an ironworker, fell through an uncovered opening when the blade of a powered saw jammed and he was pushed forward. The asserted defense was that harnesses were purportedly available at the job site and there was purportedly a “standing order” to wear them. But was that enough to enable a jury to conclude that plaintiff was the “sole proximate cause” of his accident?
The Appellate Division split 3 to 2. The majority, per opinion by Justice James M. McGuire, ruled that a factual issue had been presented:
… if adequate safety devices are made available to the worker, but the worker does not use, or misuses, them, there is no liability.
* * *
Jonathan Schreck, plaintiff’s employer’s assistant project manager, testified at a deposition conducted on January 31, 2006, that: he had weekly meetings with the safety specialist hired to oversee the construction project in question; the ironworkers were required to use certain safety devices, such as lanyards, cables or harnesses, when working near open areas; the devices were used to prevent injury in case a worker fell through an opening or off an elevated surface; the safety devices were available on the job site the day plaintiff was injured; and a standing order was in place that all workers operating around any opening in the floor were to be in a harness and tied off.
55 A.D.3d at 490 (emphasis added).
The dissent, by Justice James M. Catterson, would have ruled that failure to use a supposedly available safety device should not, under the Court of Appeals’ jurisprudence, bar recovery unless there was proof, absent here, that the device was available, that the plaintiff knew that it was available and that he was expected to use it, and that the plaintiff essentially refused to do so “for no good reason.” Gallagher, 55 A.D.3d at 492.
Held: The Court of Appeals unanimously ruled, in an opinion by Judge Pigott, that the Appellate Division dissent had the right of it.
The plaintiff’s failure to use a safety device cannot be deemed the “sole proximate cause” of the accident for Labor Law purposes unless the device was, (1) “readily available,” (2) plaintiff knew that he or she was “expected” to use it, and, (3) plaintiff “for no good reason chose not to do so.”
The court put it this way:
Liability under §240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury (see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39-40 [2004]).
This is not such a case. There is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them. Although Schreck testified that appropriate safety devices were available at the project site on the date of the accident, nowhere in his testimony did Schreck state that Gallagher had been told to use such safety devices. Schreck referred to a ‘standing order’ issued to the project foremen, directing workers to ‘have a harness on and be tied off,’ but could not say whether the order had been conveyed to the workers. Moreover, the affidavit of Gallagher’s foreman, Nover, who was not deposed, does not support NYP’s claim that Gallagher was told about safety devices.
(emphasis added).
The court further ruled that, even assuming that plaintiff had negligently worked with a hand injury and the weakness of his grip contributed to the occurrence, “such weakness in his hand would at most have contributed towards his loss of balance, and cannot as a matter of law have been the sole proximate cause of his fall from the second floor to the temporary floor.”
Comment: The last Gallagher element, that plaintiff did what she or he did “for no good reason,” used a phrase lifted from the court’s decision in Cahill v. Triborough Bridge and Tunnel Auth., 4 N.Y.3d 35, 39 (2004). The standard logically implies that if plaintiff had some acceptable reason for departing from instructions, the defense will not lie. It is, as yet, unclear whether that means only that the defense will not apply when the worker acted reasonably or whether there is also room for the hypothetical case in which the worker had a “good reason” but not a good enough reason to render the conduct “reasonable.”
1. Runner v. New York Stock Exch., 13 N.Y.3d 599 (2009): The Governing Standard for Elevation-Relatedness. Must the plaintiff-worker actually fall or be struck by a falling object in order for the subject accident to be deemed a gravity-related accident within the ambit of Labor Law §240(1)?
What if, (1) the workers have to lower an 800-pound object down a set of four stairs; (2) the employer fails to provide a “hoist” and instead assigns several workers to “essentially act[] as counterweights,” and, (3) plaintiff, who was assigned to hold the rope used to lower the object, was thereby pulled “horizontally” and thus sustained injury, when the 800-pound object fell down the stairs?
Does the fact that plaintiff moved horizontally rather than vertically take the accident beyond the bounds of the statute? And was the failure to provide a “hoist” a statutory violation in those circumstances?
The Court of Appeals answered all of those questions in Runner, in the process framing a “single decisive question” to govern elevation-relatedness.
Facts: Writing for a unanimous bench, Chief Judge Lippman summarized the facts as follows:
The trial evidence showed that plaintiff suffered serious and permanent injuries to both of his hands while performing tasks in connection with the installation of an Uninterruptible Power System on defendant New York Stock Exchange’s premises. The manner in which the injuries were sustained is undisputed. Plaintiff and several co-workers had been directed to move a large reel of wire, weighing some 800 pounds, down a set of about four stairs. To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a ten-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two other co-workers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel’s descent and plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it. Experts testified that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed had not been adequate to that task.
Runner, 13 N.Y.3d at 601, emphasis added.
The case was tried in federal court, and the trial ended with the jury finding that plaintiff’s injuries were not attributable to a gravity-related risk. Plaintiffs afterwards moved to set aside the verdict on the ground that the movement of the reel down the stairs presented a gravity-related hazard as a matter of law. The District Court agreed and the Second Circuit thereafter certified the issue to New York’s Court of Appeals.
Held: The Court of Appeals unanimously ruled that the term “falling object case” may apply even when the worker was not struck by a falling object, and that such was so here. The reasoning was as follows:
Manifestly, the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object.
* * *
The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent. And, the causal connection between the object’s inadequately regulated descent and plaintiff’s injury was, as noted, unmediated—or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the ropes opposite end.
Runner, 13 N.Y.3d at 604-05, emphasis added.
In holding that the accident was sufficiently elevation-related to fall within the statute’s scope, the court framed a “single decisive question” to henceforth govern that issue:
… we think the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
Runner, 13 N.Y.3d at 603.
As of April 2020, Runner has been cited in more than 230 New York decisions.
Brian J. Shoot, a partner with the firm of Sullivan Papain Block McGrath Coffinas & Cannavo, P.C., is a member of the American Academy of Appellate Lawyers, and also of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System.
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