You may recall our previous Legal Alert, Vol. 5, No. 10, in which we addressed how a general contractor can escape the clutches of liability that New York Labor Law § 240(1) can impose.
Labor Law § 240(1) (often called the "scaffold law") requires that "[a]ll contractors and owners and their agents...who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect...scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes...[which are to be] constructed, placed and operated as to give proper protection to a person so employed."
But what about companies that produce and/or manufacture products off-site that are later used at a project site? Can they be held liable under the scaffold law if they don't protect their employees while they are on ladders, scaffolds, etc. and engaged in the manufacturing process? And can a contractor be liable too, since the product will ultimately be used at the project?
The answer is apparently no. The New York Court of Appeals recently held in Dahar v. Holland Ladder & Mfg. Co., 18 N.Y. 3d 521 (2012), that the scaffold law does not impose such a wide liability net. And for a very simple reason: the product that is being manufactured is not a building or a structure, even if it's going to be a part of it.
The plaintiff, Michael Dahar ("Dahar") was an employee of third-party defendant West Metal Works, Inc. ("West"). West had manufactured a seven foot tall steel wall module for its customer, defendant Bechtel National, Inc. ("Bechtel"). Bechtel was going to use the module at a nuclear power plant, where it would provide support for piping.
The module had to be cleaned prior to its shipment. As you have likely surmised, Dahar is the West employee that was cleaning the module, who fell to the ground when the ladder that West had supplied him broke. Dahar sustained injuries serious enough to warrant a lawsuit.
So, Dahar sued Bechtel and West (as well as some other parties who are not relevant to this particular issue), arguing that they had violated the scaffold law, by virtue of West supplying a faulty ladder, and by virtue of Bechtel being the owner of the wall module. Dahar's argument is straightforward: I was cleaning a product that was to be an integral part of a structure, and the ladder West provided broke, thereby causing my injuries - West and Bechtel should pay. Id. at 524.
This argument did not pass muster with the two lower courts, nor with the highest court of New York. While the term "structure" has been given a very liberal meaning by New York courts, the Court of Appeals drew the line at products, stating that "...the logic of plaintiff's argument here would expand the protections of Labor Law § 240(1) even beyond manufacturing activities; the statute would encompass virtually every "cleaning" of any "structure" in the broadest sense of the term." Id. at 526.
The good news here is that the courts have provided some favorable clarity for manufacturers and contractors. Manufactured products, even if integral to the project building or structure, are not within the purview of Labor Law § 240(1), and therefore, a manufacturer's and/or contractor's potential liability will not extend in a similar situation to that of Dahar.
If you would like more information on this issue or any other construction related issue, please contact Welby, Brady & Greenblatt, LLP at (914) 428-2100.