By: Thomas H. Welby Published: November 2016

New York's Scaffold Law: Not Quite a "Strict Liability" Statute

New York State’s notorious “Scaffold Law,” Labor Law § 240(1), provides:

  1. All contractors and owners and their agents, except owners of one and two-family dwellings 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, 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.

The term “Scaffold Law” is something of a misnomer, as the risks that the statute is intended to reduce, or redress, are not limited to defective scaffolds, or accidents in which workers are injured while working on or about scaffolding.

There is a perennial struggle pitting insurance companies and employers against unions, safety advocates and the plaintiffs’ personal injury bar, over whether the “Scaffold Law” should be kept, repealed, or substantially amended.

It is widely believed, but not quite true, that the “Scaffold Law” imposes strict liability on the owner and the contractor, in every case in which a person sustains personal injuries in any “gravity-related” occurrence, defined as a fall from any elevated surface to a lower level, or an injury resulting from the fall of an object from a higher level.

Few people actually believe, to be sure, that an employer or real property owner should be wholly exempt from liability, where an employee is injured in a fall, or other gravity-related occurrence.  Rather, indignation over the Scaffold Law is primarily based on the statute’s uniquely taking the injured party’s own fault out of the damages equation.

A little historical context:  at common law, an injured plaintiff, whose own “contributory negligence” was found to have been even 1% the cause of his injuries, was barred from recovering any damages whatsoever.

Between 1972 and 1975, New York abolished “contributory negligence” as a total bar to recovery, and went to a “pure comparative fault” system in negligence lawsuits.  Since then, if an injured plaintiff in New York is found to be, for example, 90% to blame for the occurrence in which he was injured, he can still recover 10% of the resulting injuries, as found by the jury, against a defendant found to have been responsible to that extent.

As of 2015, New York is one of 13 states with “pure comparative fault,” while five jurisdictions retain the older rule that any “comparative negligence” on the plaintiff’s part will bar recovering damages altogether.  All other U.S. jurisdictions employ a hybrid system, in which the plaintiff’s recovery will be reduced, based upon his comparative fault, up to 50% or 51%, but eliminated entirely, if found to exceed the “cap.”  (New Jersey and Connecticut use a “cap” figure of 51%).

The reason that the Scaffold Law stirs such indignation on the part of insurance companies and employers is that, with exceptions to be discussed below, construction accidents involving the effects of gravity, by statute, do not take the injured worker’s comparative fault into account at all.  Thus, a worker, whose $1 million in injuries are at least largely attributable (for example) to his having consumed two six-packs of beer in the parking lot upon arriving at the jobsite, might have his damage award reduced by a sizeable fraction in any other context.  If, however, he was clever enough to get hurt while working on a construction job, he’ll probably still get his entire $1 million.

Another big negative about the Scaffold Law (from an owner’s or contractor’s viewpoint) is that, often, the injured plaintiff will be able to win a motion for summary judgment as to liability, leaving only damages to be tried, and placing the defendant at a severe disadvantage in settlement negotiations.

Nevertheless, as expansive as liability  under the Scaffold Law is, contrary to popular belief (shared, alas, even by some lawyers) it does not go quite so far as to impose “strict liability” in every case in which a construction worker falls from an elevated surface, or is injured as the result of an object falling from a height.

One major proviso related to potential liability for a gravity-related injury is that it is not enough that the plaintiff have suffered an injury related, somehow, to the operation of the force of gravity.  As the Appellate Division stated in the recent case of Kosinski v. Brendan Moral Custom Carpentry, in order to be liable under the Scaffold Law, the owner or contractor must have breached the statutory duty under Labor Law § 240(1) to provide the worker with adequate safety devices, and this breach must have proximately caused the worker’s injuries.  These prerequisites cannot exist, if adequate safety devices are available at the job site, but the worker either does not use them, or misuses them.

In effect, the foremost exception to the presumption of absolute liability is where the plaintiff’s own negligence reaches 100% of the culpable conduct causing the accident.  Even though the plaintiff’s “comparative fault” is not supposed to be considered, “proximate causation” (that the defendant’s acts or omissions have been the cause, or a cause, of the injury) is a necessary element in any negligence action.

Thus, where the plaintiff’s conduct is the sole proximate cause of the occurrence, the defendant cannot be liable.  This is because while, on the one hand, negligence on the plaintiff’s part cannot have been the sole proximate cause of his injury, if caused in part by the defendant’s failure to provide adequate safety devices, conversely — according to the case law — a statutory violation cannot co-exist with negligence by the plaintiff so pronounced that it must be said to be the sole proximate cause of his injury.

Examples illustrating the “sole proximate cause” doctrine, and what it means in practical terms, appear in Gambino v.  City of New York.  Surveying the case law (for the purpose of developing a reasoned basis to decide the case before it) the Gambino court summarized the following fact scenarios, as earlier decisions had found to justify the conclusion that the plaintiff’s conduct had been the sole proximate cause of his injuries:

  • Plaintiff, rather than retrieving a ladder, used an inverted bucket to ascend to a motor room, and was injured when he descended from the motor room by jumping.
  • The plaintiff was injured, when he ignored a direction not to drive a forklift into an area where holes had been made in the floor, causing the lift to tip over.
  • Plaintiff fell into an elevator shaft, after standing on a folding chair, while attempting to hoist himself into an elevator car stuck between floors.
  • The plaintiff was injured in a fall from a ladder, where he stood on cap of a 6’ ladder, rather than retrieving an available 8’ ladder.
  • The plaintiff was injured, after failing to heed instructions to use an available safety line.

Since every lawsuit is decided based on its own facts, the cases are not entirely consistent.  You can find decisions in which the plaintiff’s negligence seems more pronounced than in those just summarized, but was found by the Court to present a jury question as to whether it had been the “sole proximate cause.”  Generally, however, the determinative factor is recklessness or intent.

On its face, finally, the Scaffold Law exempts from liability the owners of single-family and two-family houses, so long as the owner does not direct or control the work being performed (and the work performed is directly related to the residential use of the home).

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