New York’s Labor Law §240(1), commonly known as the “Scaffold Law,” protects workers who are injured by falling objects or by a fall from an elevated structure. Enacted in 1921, the law imposed liability on anyone who knowingly or negligently erected improper scaffolding. Since then, the law has been expanded many times so that it now covers workers who fall from any elevated structure or are struck by objects due to the absence of safety devices.
Labor Law § 240(1) reads in relevant part:
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.
In Misseritti v. Mark IV Construc tion Co., Inc. the court of Appeals disallowed recovery under Labor Law §240(1) when a worker’s injury was caused by a falling object whose base stood at the same level as the worker.1 Specifically, the worker was killed when a masonry wall, located on the same level as the worker, collapsed. Judge Ciparick declined protection under Labor Law § 240(1), stating that this was the type of ‘ordinary and usual’ peril that workers are “commonly exposed to at a construction site and not an elevation-related risk subject to the safeguards prescribed” by the statute. Unsurprisingly, this became known as the “same level rule.”
In 2011, Judge Ciparick refined the “same level rule” by shifting the focus of inquiry to the presence or absence of safety devices. In Wilinski v. 334 East 92nd Housing Development Fund Corp. debris from a wall being demolished struck unsecured vertical pipes which, in turn, struck the plaintiff, causing his injuries.2 Although the base of the pipes were on the same level as the plaintiff, the court declined to apply the “same level rule,” distinguishing this case from Misseritti by stating “[h]ere, the pipes that caused plaintiff’s injuries were not slated for demolition at the time of the accident.” In denying defendant’s motion for summary judgment, the court held that “[w]hether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine.”3
But the decision in Wilinski was far from unanimous. In his dissent Judge Pigott, together with two other judges, stated that he saw “no reason to stray from the overwhelming and settled body of case law that establishes that section 240(1) does not apply when the base of the falling object is at the same level as the worker and the work being performed.”4 Because he felt the majority too greatly extended the reach of §240(1), he would have dismissed the plaintiff’s §240(1) claim.
In Salazar v. Novalex Contracting Corp. the court denied recovery to a worker who fell into a hole when the goal of the work was to fill the hole with concrete.5 This case, decided just one month after Wilinski, held that: “it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four foot deep hole when the very goal of the work is to fill that hole with concrete. … Since the liquid concrete would necessarily fill the trench and pour out over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread, particularly since the settling of concrete requires that the work of leveling be done with celerity.”
But again, this holding was not unanimous. In dissent, Judge Lippman wrote:
“The majority misapplies this Court’s recent holding in Wilinski … and errs by viewing the evidence in the light most favorable to defendants, rather than in the light most favorable to plaintiff. … The majority endeavors to create exceptions to Labor Law § 240(1) that should not exist and to narrow arbitrarily the scope of the statute in concluding that it does not apply to this case in which an elevation-related risk was clearly present and the accident, … could have been prevented by the simple placement of a cover over the trench or a barrier around its perimeter.”6
If there is a common thread in Wilinski and Salazar it is that safety devices are required when a mechanism causing an injury is not the subject of the work being performed while conversely, safety devices are not required (thus barring plaintiff from asserting a §240(1) cause of action) when the mechanism of the injury is the actual subject of the work being performed.
Two other recent Court of Appeals decisions also denied summary judgment to plaintiffs:
In Ortiz v. Varsity Holdings, LLC the plaintiff’s job was to load a dumpster and rearrange construction debris which, he claimed, required him to stand on a narrow ledge of a six foot high dumpster.7 He was injured when he fell off the ledge. The court, denying both plaintiff’s and defendant’s motions for summary judgment, cited the existence of factual issues regarding the need for safety equipment to prevent the risk of falling.
Finally, in Dahar v. Holland Ladder & Mfg. Co. the court declined to extend protection under Labor Law §240(1) to a manufacturing company employee who suffered injuries from a fall from a ladder while cleaning a product prior to shipping.8 The court noted that all the cases involving cleaning under Labor Law § 240(1), with one exception, dealt with the cleaning of windows of a building, with or without scaffolding or other devices. The court discussed at length the legislative history of the statute’s application to construction and unanimously declined to extend §240(1) to the cleaning of a manufactured product by a factory worker. The court was disinclined to “extend the statute so far beyond the purposes it was designed to serve.”
1. 86 N.Y.2d 487, 489 (1995).
2. 18 N.Y.3d 1,11 (2011).
4. Id. at 15.
5. 18 N.Y.3d 134, 140 (2011).
6. Id. at 140-41.
7. 18 N.Y.3d 335, 340 (2011).
8. 18 N.Y.3d 521, 526 (2012).