By: Thomas H. Welby Published: January 2013

Safety Policy: Construction Employers' Primary Duties Under New York's Labor Law

In New York (in private-sector employment, anyway) federal OSHA has a comprehensive set of safety standards for construction work - plus a separate set of rules for general industry.

New York's Industrial Code pre-dates OSHA, and remains very much in force. Generally, when OSHA is violated, the result is a citation, and a monetary penalty. However, although employees can and often do bring OSHA violations to the attention of the Regional Office (and unions are notified, and invited to participate in citation contest proceedings) employees cannot themselves issue citations, insist that the agency act, or go to court based on OSHA violations, even when injury or illness results.

Instead, New York has a Workers' Compensation statute and personal injury actions under the state Labor Law. Workers' Comp, of course, was an early-20th century innovation, representing a major compromise of competing interests. The benefit to workers is essentially threefold. First, they generally receive monetary compensation for covered work-related injuries within a reasonable period of time. Second, as Workers' Comp insurance is mandatory, an injured worker rarely will be left with no compensation, should the employer become insolvent. Third, the injured employee does not have to prove, as a condition to obtaining compensation, that his or her employer was negligent.

The trade-off, of course, is that sums recoverable under Workers' Comp are modest, and are often viewed by injured employees as insufficient. And, in theory, an employee covered by Workers' Compensation may not sue his employer to recover damages for his injuries.

I say "in theory," because the prohibition against suing one's employer has an exception big enough to drive a truck through - at least where there are two or more defendants. Assume, for example, that a subcontractor's employee is injured on the job, due to an equipment malfunction. While he may not be able to sue his employer directly, he can probably sue the general contractor, the construction manager if any, the premises owner, and the manufacturer and the vendor of the allegedly defective equipment.

Thanks to New York's "contribution" statute, the doctrine of "comparative negligence," and what is called "third-party practice" in civil tort litigation, even where the employee is barred, under the Workers' Compensation Law, from suing his employer directly, the other defendant(s) will bring the employer into the lawsuit by means of a "third-party complaint."

In New York, a party alleged to have been negligent is entitled to an apportionment of liability among all parties as the jury finds to have contributed to the plaintiff's damages. Thus, the employer, even if protected against direct suit by his injured employee, will have to pay his share of the damages (corresponding to his degree of fault) under this doctrine of "comparative negligence." Likewise, a plaintiff whose own negligence contributed to his injuries is not wholly barred from recovering damages, but his recovery will (with one major exception) be reduced, according as his fault contributed to bringing about his own injuries.

The exception mentioned, of course, is New York's notorious "Scaffold Law," N.Y. Labor Law § 240. Where the employer has failed to provide adequate protection against falls and other gravity-related hazards, the employee's own negligence is irrelevant (unless it was the "sole proximate cause" of the occurrence).

Three sections of the Labor Law are pleaded in most lawsuits in New York alleging construction-related injuries. One, already mentioned, is the Scaffold Law, § 240(1). The second is § 241(6), which requires compliance with the provisions of the Industrial Code, promulgated by the Division of Safety & Health of the New York State Department of Labor. The third, § 200, essentially codifies the common law duty to maintain jobsites "as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places." These three sections outline, essentially, the primary duties imposed on construction employers by the State of New York. They're illustrated in a recent appeal in the case of Mendez v. Jackson Development Group, Ltd.

Mendez allegedly was injured, while he and a co-worker were installing plate glass window panes in a building under construction. While Mendez was standing on a ladder, he and the co-worker, who was standing on the ground, lifted a pane in order to install it in a window frame. The pane split in half, and the pieces stuck Mendez, injuring him.

Mendez commenced suit under the three aforementioned sections of the Labor Law. The lower court granted summary judgment in the plaintiff's favor on the "Scaffold Law" cause of action. The court also denied motions by defendants as to causes of action based on each of the three statutory sections mentioned.

The defendants appealed from each of the lower court's determinations. The Appellate Division held that the lower court had correctly sustained the Labor Law § 200 claim. Defendants argued that they did not direct or control the plaintiff's work. However, the appellate court stated, where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence, and under Labor Law § 200, if it has control over the work site, and actual or constructive notice of the dangerous condition. The Appellate Division agreed that the defendants' submissions in the court below had not removed all triable issues of fact regarding control over the work site, and actual or constructive notice of a dangerous condition. Accordingly, those issues could not be decided summarily, but required a trial.

However, while the appellate court agreed with the lower court that summary judgment was appropriate on the Scaffold Law claim, it found that judgment had been granted below in favor of the wrong party! Although the plaintiff had been injured by falling glass, not every object falling on a worker, causing injury, gives rise to a § 240(1) claim. The plaintiff must show that, at the time the object fell, it was being "hoisted or secured," or "required securing for the purposes of the undertaking." The plaintiff has to show, also, that the object fell because of the absence, or inadequacy, of a safety device listed in the statute. Mendez completely failed to show this, and so this count of his complaint was dismissed.

The Appellate Division found, finally, that summary judgment should have been granted dismissing the § 241(6) claim. Suit under that section must be premised on a specified provision of the Industrial Code alleged to have been violated. In Mendez, the plaintiff alleged a violation of a section requiring owners and contractors to maintain working areas free from debris and other tripping hazards, "insofar as may be consistent with the work being performed."

This claim was dismissed, because the plaintiff did not allege that he tripped on a tripping hazard (or even that such hazard had caused the glass to break).

Your safety personnel should all become familiar with Part 23 of the Industrial Code, "Protection in Construction, Demolition and Excavation Operations." It's online at the NYS Labor Department's website. These rules (similar, but not identical to, OSHA's construction industry standards) need to be incorporated into your company's safety program.

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising