New York’s Labor Law § 240(1), a/k/a the “Scaffold Law,” provides that contractors, owners and their agents may be held liable for injuries suffered by construction workers who fall, or are struck by falling objects, where the fall results from a failure to provide the injured worker with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection” to persons employed in “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”
Construction companies and, especially, liability insurers, abhor the Scaffold Law, because — unlike ordinary negligence lawsuits — cases decided under it do not take into account the “comparative negligence” of the plaintiff, and do not reduce any damages recovery correspondingly.
The Scaffold Law is limited in its application to construction cases, and to injuries sustained while working on a building or structure, performing one of the activities listed above. Plus, it is confined to cases involving a fall (that is, either a falling worker, or a falling object), which necessarily requires a difference in elevation. Finally, for the Scaffold Law to apply, the injuries must result from the failure to provide the employee with a proper safety device to prevent falls, such as a ladder, or the absence or failure of a suitable device, such as a hoist, to prevent objects from falling onto the employee.
One sub-group of Scaffold Law cases affected by recent changes in the case law is that in which the difference in elevation is but slight — a few feet, or possibly even a few inches. Traditionally, there existed a doctrine that a de minimis height differential would not bring the case within the Scaffold Law. (In this context, we can translate “de minimis” as meaning, “too slight that we ought to take account of it”).
Beginning about six years ago, however, with the New York Court of Appeals’ decision in the Runner case, the de minimis rule began to erode, with the courts beginning to find that where the falling object in question is a heavy one, the courts ought to consider the force that the object could exert in falling, even from a very slight height differential.
In the recent case of Martinez v. 243 Property LLC, a worker was injured, while he and coworkers were moving an 8,000 lb. piece of equipment across a flat platform. Two wheels on the equipment broke off, leaving the workers to push and pull the heavy piece of equipment, which pinned the injured worker against a column on the side of the flat platform, causing his injuries.
The plaintiff in Martinez testified that the equipment was never lifted into the air, and did not fall. Nevertheless — and this is what is remarkable about this case — the motion judge denied the defendants’ motion for summary judgment dismissing the Scaffold Law cause of action.
On appeal, the New York Appellate Division modified the lower court’s order, and dismissed the Scaffold Law claim. The plaintiff’s own testimony, the Appellate Division held, established that the piece of equipment that had pinned him to the column was not a “falling object,” that he was not a “falling worker,” and that the accident did not flow from the application of the force of gravity. Thus, the employee was not covered by Labor Law § 240(1).
Thus, although other cases of recent vintage provide that the weight of the object will be considered where the distance traversed in the fall is but slight, Martinez suggests that the Appellate Division remains unwilling, at least for now, to dispense altogether with the requirement that the object have fallen from a greater height to a lesser one, if the extraordinary protections of the Scaffold Law are to apply.
Another recent Scaffold Law decision I found interesting was Cicillini v. New York City Transit Authority. In that case, the plaintiff was working in Manhattan on a part of the extension of the Number 7 subway line. He was a “drill runner,” a person who drills holes for the insertion of dynamite as preparation for blasting.
In blasting operations, “blasting mats” may be used to muffle or contain the blast. These are made from rubber tires, rigged together with steel cables, and a ring to allow for hoisting. The blasting mats used on the subway extension project in Cicillini ranged from about 10’ square to 10’ x 14’, and weighed between 6,000 and 8000 lbs. They were placed over the blasting holes, using a hook and chain connected to the bucket of an excavator, so that the mats could be dragged or lifted by the bucket.
In Cicillini, the plaintiff’s supervisor testified that, immediately prior to the accident, mats were being slid off a stack by an operating engineer with an excavator. The plaintiff, on foot, approached the excavator from the rear, and was not seen by the operator. The operator was using the excavator to pick up the last of a stack of blasting mats, which was folded over, atop some wooden crane mats. As the blast mat was lifted, it came unfolded, and struck the plaintiff in the leg.
The plaintiff testified that he had complained that the operator had been trying to get to the largest mat on the bottom of the pile, by using the bucket to “slap [the mats] off the top one by one and shoot them to the floor.” The plaintiff claimed he objected that this procedure was unsafe and that, when his supervisor agreed, he went to get the proper equipment — the chains and the hook — and was struck in the process of doing so, finding himself underneath the mat.
The supervisor testified that the “sliding-off” method and “hook-and-ring” method were both used, according to varying site conditions, but that it was standard operating procedure that no one was permitted to move around a piece of machinery, as Cicillini had, without first making eye contact with the operator, to ensure that the operator was aware of the worker on foot, and that the latter would not walk into the path of the work for which the equipment was being used.
The court granted Cicillini’s summary judgment motion, based on his contention that the mat had fallen from a height and that, had the mat been hoisted using a hook and chain, or even controlled by the excavator’s bucket during its descent (rather than being swatted, and allowed to free-fall) the accident could have been prevented.
The most noteworthy aspect of the Civillini case is the court’s rejection of the defendant’s argument that the sole proximate cause of the accident was the plaintiff’s disregard for standard operating procedure, and his movement into the work zone without having made eye contact with the equipment operator. (Such conduct by the plaintiff, absent the applicability of the Scaffold Law, would likely have led to a diminution of any damages, based on the plaintiff’s comparative fault in causing his own injuries).
The Scaffold Law, the court held, is not satisfied by providing safety instructions, but only by furnishing, placing and operating such devices, so as to give a worker proper protection. An instruction to avoid an unsafe practice, the court held, is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely.
The third and final case I’ll mention is O’Brien v. Port Authority of New York. In that case, the plaintiff slipped and fell down the stairs of a temporary tower scaffold. The Appellate Division, modifying a lower court order that had denied summary judgment on the plaintiff’s Scaffold Law claim, held that the fact that the staircase had not prevented the plaintiff’s fall was dispositive proof of its inadequacy. The court found no triable issue of fact, as would preclude summary judgment and require a trial, had been made out by the conflicting expert affidavits as to the adequacy and safety of the stairs.
I found myself in agreement with the dissenting opinion in O’Brien, which asserted that the lower court had properly denied summary judgment on the Scaffold Law claim, based on (1) a Court of Appeals case holding that a fall from a scaffold or ladder, in and of itself, does not result in an award of damages under the Scaffold Law; and (2) the conflicting expert affidavits concerning the adequacy of the staircase under prevailing standards.