Most of you have heard of New York’s "Scaffold Law," Labor Law § 240(1), which requires contractors, building owners, and their agents to provide adequate safety to workers subjected to elevation-related risks.
This statute is about as popular with New York liability insurers as, say, the memory of General Sherman is in Georgia. Unquestionably, it imposes a higher standard as to elevation-related risks (which include objects falling onto employees, as well as employees falling from heights) than the federal standard under OSHA.
The statute provides:
All contractors and owners and their agents . . . in the erection. . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 a person so employed.
I’m a devout advocate of fall protection for construction workers. Falls are the number one cause of death and serious injury in construction. The lack of fall protection is the violation most commonly cited by OSHA.
The Scaffold Law, I nevertheless admit, steers hard in the direction of severity, as the negligence of the employee is generally not even a partial defense, where a violation results in injury. In part, I suspect, because the insurance companies like to depict a stringent law as being even more draconian than it is (with hopes of repeal, which hasn’t happened yet) it’s often said, and probably many believe, that the Scaffold Law is "strict liability statute."
Which means, that if your employee, or your subcontractor’s employee, sustains injury in a fall, or other gravity-related occurrence, you will necessarily be held liable.
As protective as the Scaffold Law is, it’s not quite that categorical. This is illustrated by a recent interim decision by a federal judge, applying New York law, in Maher v. City of New York.
Maher, an ironworker, was working as a steel connector on a School Construction Authority job in Brooklyn. His direct employer was Glasmar Steel Erectors, headed and partly owned by Maher’s father. Glasmar was a subcontractor to Feinstein Iron Works, which in turn was a sub to Ahern Contracting Corp., the general contractor.
Throughout the day of the occurrence, Maher was wearing a harness with a six-foot lanyard. After connecting beams on the first floor of the building frame, he climbed a ladder, provided by Glasmar, to get to the second floor to connect another beam. Maher and the only other witness to the occurrence, crane operator Mark Jones, agreed that Maher was tied off to a safety line running along the second-level steel beam while performing this work.
After connecting the second-floor beam, Maher attempted to install a pentagonal brace and gusset to the intersection of a vertical beam running the height of the building, and a horizontal beam on the building’s second level. Maher testified he could not install the lower bolts on the gusset plate from the second-level horizontal beam, because the connection points were beyond his reach. Maher therefore detached his lanyard from the safety line, climbed down a ladder to the first level, and, after walking along the first-level horizontal beam, shimmied up a vertical column, to the bottom of the gusset place that he was attempting to install.
The parties disagreed as to whether the safety line was accessible to Maher at this point. Maher claimed that it was out of reach; the defendants that Maher elected not to use it. In any case, while attempting to secure the gusset plate, Maher lost his footing, fell 22 feet to the ground, and sustained multiple injuries.
Often, a Scaffold Law case will be decided in the plaintiff’s favor as to liability by motion for summary judgment. Not infrequently, the defendants simply concede damages, and dispute only the monetary value of the plaintiff’s injuries.
Maher’s Scaffold Law cause of action was conjoined with two additional claims: one under Labor Law § 200, which is essentially a codification of the common-law duty of an owner or general contractor to maintain a safe construction site, and one under Labor Law § 241(6), which requires all contractors, building owners and their agents to manage areas in which construction work is being performed, so as to provide reasonable and adequate protection to the construction workers, and others lawfully onsite.
The Maher case produced "dueling motions" for summary judgment as to liability. The magistrate judge (to whom the district judge referred the motions to hear and report) recommended that the court grant summary judgment in favor of the owner and general contractor on the Labor Law § 200 and common-law negligence claims. The magistrate found, and the district judge agreed, that the plaintiff had presented insufficient proof to establish that the owner and general contractor had the authority to supervise and control the work actually being performed.
Which is to say, that the common-law and Labor Law § 200 liability attaches only where the defendant controlled the manner in which the plaintiff performed the injury-producing work. It is not sufficient that the defendants had general supervisory authority over the construction site, including the authority to inspect the work, and stop work if required for safety reasons.
Turning to the Labor Law §§ 240(1) and 241(6) claims, the fact pattern in Maher was pretty much a "classic" for a case under the Scaffold Law. That is, the injured worker arguably took undue risks in unhooking his lanyard, walking along a beam while unprotected, and shimmying up a vertical beam to better position himself to install the gusset plate. If principles of comparative negligence applied, such conduct by the plaintiff would likely result in a diminution of any recovery, based on his own contributory negligence.
And, especially as a safety line was present on the second level, if Maher had found that installing the gusset plate required him to position himself in such a way that the safety line eluded his reach, arguably he should have called this to someone’s attention, and had the safety line moved, or an additional line installed, so that he could tie off while installing the gusset plate, rather than simply forging ahead.
What the magistrate judge and district judge found was that there were issues of fact, precluding summary judgment for either side and requiring a trial, as to whether the owner and general contractor had fulfilled their duties under the Scaffold Law (as well as Labor Law § 241). The evidence was contradictory as to whether the safety line was within Maher’s reach as he tried to install the gusset plate. Significantly, the court found, too, that there was sufficient evidence of the availability of alternative safety devices (e.g., a ladder or a "beam buddy") as to present an issue for a jury as to whether the actions of Maher, a well-trained, 20-year veteran who had not merely taken, but conducted, safety training, including fall protection, were the sole proximate cause of his injuries.
Thus, while the Scaffold Law is often referred to as a "strict liability" provision, a well-established exception may relieve the defendants of all liability, where the plaintiff’s own negligence was not merely a contributing cause, but the "sole proximate cause" of the occurrence.