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New Developments In New York Labor Law Sections 200, 240 & 241

New Developments In New York Labor Law Sections 200, 240 & 241. Stephen Wellinghorst, Esquire Wellinghorst & Fronzuto, L.L.C. 4 Franklin Avenue Ridgewood, N.J. 07450 (201) 251-0046. New York Office: 10 Potter Lane Suffern, N.Y. 10901. Table of Contents. New York Labor Law Section 200

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New Developments In New York Labor Law Sections 200, 240 & 241

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  1. New Developments InNew York Labor Law Sections 200, 240 & 241 Stephen Wellinghorst, Esquire Wellinghorst & Fronzuto, L.L.C. 4 Franklin Avenue Ridgewood, N.J. 07450 (201) 251-0046 New York Office: 10 Potter Lane Suffern, N.Y. 10901

  2. Table of Contents • New York Labor Law Section 200 • New York Labor Law Section 240 • New York Labor Law Section 241 • Contribution and Indemnification Issues

  3. New York Labor Law Section 200Purpose • Section 200 merely codifies common-law duty of owner or general contractor to provide safe place for workers at construction site.

  4. New York Labor Law Section 200History and Evolution • Employer originally had a common law duty to provide a safe workplace. • Section 200 extended the common law by including within “workplace”, tools and appliances. • Section 200 has also made the duty non-delegable.

  5. New York Labor Law Section 200Application of Section 200 • Section 200 only applies where there is actual or constructive notice of an alleged dangerous condition and control by an entity. • EVERYONE GETS SUED!!

  6. New York Labor Law Section 200Issues Relating to Direction and Control • Generally, Section 200 only applies to entities who are able to exercise control over work. • Party charged with violation of Section 200 must be shown to have exercised sufficient control over work being performed to have been in position to correct or avoid unsafe condition. Rosas v Ishack, 631 N.Y.S.2d 417 (2nd Dept. 1995). • Defendant was entitled to summary judgment in action under Section 200 since its contract with owner was limited to demolition and construction of 2 walls, without any right to control worksite. Saaverda v East Fordham Rd. Real Estate Corp., 649 N.Y.S.2d 416 (1st Dept. 1996).

  7. New York Labor Law Section 200Notice Issues • The common-law duty to provide a safe place to work is embodied in subdivision 1 of Section 200 and to be charged with negligence for breach of this duty, an owner must have notice, either constructive or actual, of the dangerous condition which caused the accident.

  8. New York Labor Law Section 200Notice Issues, Continued • There is no liability under Section 200 where the alleged dangerous condition is open and obvious. • Seee.g.Panetta v. Paramount Communs., 681 N.Y.S.2d 85 (2nd Dept. 1998). Liability for common-law negligence and violation of Section 200 did not attach, because dangerous condition complained of was open and obvious, where plaintiff hit his head on overhead pipe that was part of scaffolding at work site.

  9. New York Labor Law Section 240Statute • All contractors and owners (with the exception of single and two family homeowners) who are performing erection, demolition, repairing, altering, painting or cleaning of a building shall be required to furnish scaffolding, hoists, stays, ladders and other devices to all persons performing such work.

  10. New York Labor Law Section 240Purpose and Requirements • The purpose of this law is to protect workers engaged in construction activities involving heights by mandating the use of protective equipment and charging the responsibility for provision of such equipment to the owner of the site. The law exempts single and two family homeowners from its applicability unless such are exercising control over the work. Also exempt are professional engineers and architects so long as they are not directing the work being performed.

  11. New York Labor Law Section 240Purpose and Requirements, Continued • In addition, the law requires that scaffolding over 20 feet high is mandated to have a safety rail that is at least 34 inches above the floor of the platform and must be fastened to avoid swaying. Finally, all scaffolding must be able to bear weight four times that which will be placed on it when in use.

  12. New York Labor Law Section 240History and Evolution • The law’s origins trace back to 1885 which made the failure to provide scaffolding a misdemeanor for the employer. It has been amended multiple times over the years to increase the scope of the statute and protection afforded to the workers. In 1921, it was amended to require lings, hangers, blocks, pulleys, braces, irons and ropes as well as the original requirements of scaffolding.

  13. New York Labor Law Section 240History and Evolution, Continued • The duties imposed under the statute are non-delegable and an owner or general contractor will not escape liability by delegating the responsibility to other contractors or subcontractors. Seee.g.Kelly v. Diesel Construction, 35 N.Y.2d 1 (1974), Rocha v. State of New York, 45 A.D.2d 633 (3d Dept. 1974)

  14. New York Labor Law Section 240History and Evolution, Continued • Section 240 was intended by legislature to place ultimate responsibility for building practices on property owners and contractors not the workers who are scarcely in a position to protect themselves from accidents. Lombardi v. Stout, 80 N.Y.2d 290 (1992). (Because the unions in New York are so weak.)

  15. New York Labor Law Section 240History and Evolution, Continued • Liability is mandated against an owner or contractor who fails to provide appropriate safety devices, regardless of what the terms of the contract provide or what the custom and practice in the construction industry may be. If evidence establishes absence of safety devices, Section 240 has been violated. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985)

  16. New York Labor Law Section 240Liability of Particular Entities • Although the law exempts single and two family homeowners from its applicability unless such are exercising control over the work. Also exempt are professional engineers and architects so long as they are not directing the work being performed. However, such persons can still be held liable under common law or other provisions of the law.

  17. New York Labor Law Section 240Activities Covered by Statute Injury Related to Force of Gravity • ROCOVICH V. CONSOLIDATED EDISON, 78 N.Y.2d 509 (1991) CASE INVOLVED ROOFER WORKING ON A ROOF WHO SLIPPED AND FELL INTO 12” TROUGH WHICH RAN ALONG THE ROOFLINE. PLAINTIFF ARGUED THAT THERE WAS SOME ELEVATION THUS SECTION 240 APPLIED. COURT HELD THAT 12 INCH ELEVATION DIFFERENTIAL DID NOT MANDATE USE OF PROTECTIVE DEVICES UNDER SECTION 240. 12” NOT ENOUGH TO TRIGGER SECTION 240.

  18. New York Labor Law Section 240Activities Covered by Statute Injury Related to Force of Gravity • COURT ESTABLISHED APPLICATION OF STATUTE WHEN: DIFFERENCE IN HEIGHT BETWEEN WORKER AND LEVEL BELOW WORKER OR WHEN DIFFERENCE IN HEIGHT BETWEEN WORKER AND MATERIALS BEING HOISTED OR SECURED ABOVE WORKER. • COURT ALSO RULED THE HEIGHT ALONE IS NOT THE SOLE CRITERIA FOR APPLICATION OF SECTION 240. • APPLICABILITY DETERMINED CASE BY CASE.

  19. New York Labor Law Section 240Activities Covered by Statute Special Hazard • AlROSS V. CURTIS PALMER, 81 N.Y.2d 494 (1993) COURT EXPANDED ROCOVICH TO REQUIRE THAT INJURY MUST HAVE A DIRECT CONNECTION TO DANGERS POSED BY RISKS ASSOCIATED WITH GRAVITY BEFORE LIABILITY ATTACHES (PLAINTIFF WORKING ON SCAFFOLDING BUT DID NOT FALL FROM SUCH). • COURT HELD THAT SECTION 240 WAS DESIGNED TO PREVENT THOSE TYPES OF ACCIDENTS IN WHICH THE SCAFFOLD ETC PROVED INADEQUATE TO SHIELD THE WORKER FROM HARM.

  20. New York Labor Law Section 240Activities Covered by Statute Special Hazard • NARDUCCI V. MANHASSET BAY ASSOCIATES, 96 N.Y.2d (2001) PLAINTIFF INJURED WHEN GLASS FELL UPON HIM WHILE STANDING ON A LADDER; COURT FOUND THE LIABILITY UNDER SECTION 240 CONTINGENT UPON THE EXISTENCE OF A HAZARD CONTEMPLATED BY THE STATUTE. AS SUCH, FALLING OBJECTS WOULD BE COVERED UNDER SECTION 240 IF RELATED TO ITEMS BEING HOISTED OR SECURED OR IF IT IS PART OF BUILDING BEING WORKED ON.

  21. New York Labor Law Section 240Activities Covered by Statute Height Specifications • SECTION 240 DOES NOT PROVIDE FOR HEIGHT SPECIFICATION FOR APPLICABILITY OF STATUTE • THOMPSON V. ST. CHARLES CONDOMINIUMS, 756 N.Y.S.2d 530 (1ST Dept. 2003) PLAINTIFF WAS MASON TENDER WHO PLACED BRICKS AND MORTAR ON FOUR FOOT HIGH SAWHORSE SCAFFOLD FOR BRICK LAYER TO USE. BRICK LAYER CLIMBED SCAFFOLD WHICH COLLAPSED AND BLOCK FELL ON PLAINTIFF ON GROUND. COURT HELD THAT THERE IS NO DE MINIMUS HEIGHT FOR SECTION 240 TO APPLY. COURT FOUND APPLICABILITY OF 240 BECAUSE OF FAILURE OF PRESENCE OF SAFETY DEVISE RATHER THAN HEIGHT.

  22. New York Labor Law Section 240Activities Covered by Statute Typical Hazards • COURTS HAVE FOUND APPLICABILITY OF SECTION 240 IN THE FOLLOWING SITUATIONS: • ELEVATED RAMPS • FIRE ESCAPE LADDER FALL OFF BUILDING • PAINTING DIVING BOARD OF POOL • LADDERS (BOTH SECURED AND UNSECURED)

  23. New York Labor Law Section 240Devices Involved with StatuteTrucks • COURT DETERMINED THAT FALLING FROM A CONSTRUCTION VEHICLE IS NOT AN ELEVATED RISK CONTEMPLATED BY SECTION 240 (BOND V. YORK HUNTER CONSTRUCTION, 95 N.Y.2d 993 (2000).

  24. New York Labor Law Section 240Devices Involved with StatuteTrucks • CASES ALSO HOLD THAT LOADING AND UNLOADING OF TRUCKS IS NOT ELEVATED RISK UNDER SECTION 240 (CABEZAS V. CON ED, 296 A.D.2d 522 (2d Dept. 2002)) • MOST CASES INVOLVING TRUCKS ARE RESOLVED IN FAVOR OF DEFENDANTS UNLESS TRUCK BEING USED AS PLATFORM TO PERFORM ELEVATED WORK.

  25. New York Labor Law Section 240Devices Involved with StatuteStairways and Fixed Structures • COURTS HAVE CONSISTENTLY HELD THAT SECTION 240 DOES NOT APPLY TO SLIP AND FALLS IN STAIRWAYS AS STAIRS ARE NOT CONSIDERED SAFETY DEVICES IF PERMANENT PART OF BUILDING (MILANESE V. KELLERMAN, 41 A.D.3D 1058 (3D DEPT. 2007) • THE CONTROLLING FACTOR IN THESE CASES IS NOT WHETHER THE DEVICE IS PERMANENT BUT WHETHER IT SERVES THE PURPOSE OF PROVIDING AN ELEVATED PLATFORM. (SOMETIMES STAIRS ARE CONSIDERED ELEVATED WORK PLATFORMS.)

  26. New York Labor Law Section 240Devices Involved with StatuteElevators • GENERALLY, SECTION 240 WILL NOT APPLY EVEN THOUGH ELEVATORS ARE INHERENTLY HEIGHT RELATED.

  27. New York Labor Law Section 240Risks Covered by Statute • SECTION 240 RELATES NOT ONLY TO CONSTRUCTION OF BUILDING BUT DEMOLITION, REPAIR, ALTERATION, CLEANING AND OTHER MAINTENCE RELATED WORK

  28. New York Labor Law Section 240Risks Covered by Statute, Continued • BUSTAMANTE V. CHASE MANHATTAN, 241 A.D.2d 327 (1ST Dept. 1997) PLAINTIFF FELL OFF LADDER WHEN CLEANING TOPS OF PARTITIONS; SECTION 240 APPLICABLE. • VERNUM V. ZILKA, 241 A.D.2d 885 (3d Dept. 1997) PLAINTIFF SHOVELING SNOW OFF ROOF CONSIDERED CLEANING AND SECTION 240 APPLICABLE WHEN INJURY OCCURRED.

  29. New York Labor Law Section 240Risks Covered by StatuteAlteration of Premises • COURT RULINGS ON THIS TYPE OF WORK HAVE FOUND THAT SECTION 240 IS APPLICABLE IF THE WORK BEING PERFORMED RESULTS IN A SUBSTANTIAL PHYSICAL CHANGE TO THE BUILDING OR ITS COMPONENTS (JOBLON V. SOLO, 91 N.Y.2d 457 (2004)).

  30. New York Labor Law Section 240Risks Covered by StatuteWork Associated with Construction • CASES FIND APPLICATION OF SECTION 240 IN SUCH SITUATIONS AS REPAIRING BACK HOE DURING CONSTRUCTION OF PIPELINE (COVEY V. IROQUOIS GAS, 89 N.Y.2d. 952 (1997)), INSPECTION OF CONSTRUCTION SITE (MCMANN V. HSM PACKING CORP., 755 N.Y.S.2d 186 (4TH Dept. 2004), PERFORMANCE OF SECURITY GUARD DUTIES (SPAULDING V. BAY RIDGE, 759 N.Y.S.2d 179 (2d Dept. 2005).

  31. New York Labor Law Section 240Risks Covered by StatuteRepair and Maintenance • GENERALLY, ROUTINE MAINTENANCE IS NOT COVERED UNDER SECTION 240 UNLESS IT IS AN INTEGRAL PART OF SOME OTHER COVERED ACTIVITY I.E. MAINTENCE WORKER INJURED IN ACTIVE CONSTUCTION SITE.

  32. New York Labor Law Section 240Liabilities of Particular Entities • SECTION 240 IS A CATEGORY OF PREMISES LIABILITY. ABSENT A SHOWING THAT DEFENDANT COULD NOT CONTROL THE ACTIVITIES ASSOCIATED WITH PLAINTIFF’S WORK, LIABILITY CANNOT ATTACH. HOWEVER, IF WORK BEING DONE IS INTEGRAL AND NECESSARY TO THE CONTEMPLATED CONSTRUCTION, IT IS COVERED.

  33. New York Labor Law Section 240Liabilities of Particular Entities, Continued • SECTION 240 APPLIES TO ALL CONTRACTORS, OWNERS AND THEIR AGENTS WHO ARE INVOLVED IN THE DEMOLITION, CONSTRUTION, REPAIR OF BUILDINGS AND STRUCTURES. APPLIES TO ALL OWNERS REGARDLESS OF DEGREE OF CONTROL OR EVEN WHETHER OWNER CONTRACTED FOR WORK OR BENEFITTED FROM IT (GORDON V. EASTERN RAILWAY SUPPLY, 82 N.Y.2d 555 (1993)).

  34. New York Labor Law Section 240Liabilities of Particular Entities, Continued • STATUTE WILL NOT APPLY IF PERFORMED WITHOUT CONSENT, IN VIOLATION OF LEASE AND STATUTE (SANATASS V. CONSOLIDATED INVESTING CO., 38 A.D.3d 332 (1ST Dept. 2007)).

  35. New York Labor Law Section 240Liabilities of Particular Entities, Continued • SECTION 240 IS NON-DELEGABLE FOR GENERAL CONTRACTORS. CONSTRUCTION MANAGERS MAY BE HELD LIABLE IF HAVE DUTY TO CONTROL THE WORK GIVING RISE TO THE INJURY (KENNY V. GEORGE A FULLER CO., 87 A.D. 183 (2d Dept. 1982); PINO V. IRVINGTON UNION FREE SCHOOL DISTRICT, 43 A.D.3d 1130 (2d Dept. 2007)).

  36. New York Labor Law Section 240Liabilities of Particular Entities, Continued • INDEPENDENT PRIME CONTRACTORS NOT LIABLE UNDER SECTION 240 FOR INJURIES SUSTAINED OUTSIDE THE SCOPE OF WORK INCLUDED IN CONTRACT. SAME APPLIES TO SUBCONTRACTORS ON A PROJECT (AVERSANO V. JWH CONTRACTING LLC., 37 A.D.3d 745 (2d. Dept. 2007)). (BUT GOOD LUCK GETTING OUT ONCE YOUR COMPANY IS NAMED.)

  37. New York Labor Law Section 240Defenses AvailablePlaintiff’s Own Conduct • IF ACTIONS OF PLAINTIFF ARE SOLE PROXIMATE CAUSE OF INJURY, SECTION 240 INAPPLICABLE (WEININGER V HAEDORN, 91 N.Y.2d 958 (2004)). HOWEVER, VERY FACT SPECIFIC AND COURTS DO NOT LIKE TO RULE THIS WAY.

  38. New York Labor Law Section 240Defenses AvailableProvision of Safety Equipment • PLAINTIFF INJURY WOULD NOT HAVE OCCURRED IF USED SAFETY EQUIPMENT PROVIDED (LENIAR V. METRO TRANSIT AUTHORITY, 37 A.D.3d 425 (2d Dept. 2007)) • GENERALLY QUESTION OF WHETHER SAFETY DEVICE WAS ADEQUATE IS QUESTION OF FACT UNLESS ESTABLISHED AS MATTER OF LAW THAT COLLAPSED, WAS DEFECTIVE OR WAS IMPROPERLY PLACED (NORWOOD V. WHITING-TURNER CONSTRUCTION, 40 A.D.3d 718 (2d Dept. 2007))

  39. New York Labor Law Section 240Defenses AvailableRecalcitrant Worker • WHEN DEFENDANT CAN SHOW THAT ACCIDENT SOLELY CAUSED BY REFUSAL OF PLAINTIFF TO USE SAFETY EQUIPMENT, SECTION 240 INAPPLICABLE (SMITH V. HOOKER, 89 A.D.2d. 361); CHIMBORAZO V. WCL ASSOCIATES, 37 A.D.3d 394 (2d. Dept. 2007)).

  40. New York Labor Law Section 240Defenses AvailableSuperseding Cause • PROVISION OF EVIDENCE THAT EVENT CAUSING PLAINTIFF INJURY NOT FORSEEABLE; HANDLED BY COURT IN SAME MANNER AS TYPICAL NEGLIGENCE MATTERS.

  41. New York Labor Law Section 240Defenses AvailableEngineer and Architect Exception • SECTION 240 INAPPLICABLE TO THESE PERSONS SO LONG AS NOT DIRECTING OR CONTROLLING WORK ACTIVITIES (HAMBY V. HIGH STEEL STRUCTURES INC., 134 A.D.2D 884 (4TH Dept. 2004)).

  42. New York Labor Law Section 240Summary Judgment and Dismissal • CONSTRUCTION MANAGER ENTITLED TO SUMMARY JUDGMENT WHEN ROLE WAS ONLY ONE OF GENERAL SUPERVISION (DELAHAYE V. ST. ANNE’S SCHOOL, 40 A.D.3d 679 (2d Dept. 2007))

  43. New York Labor Law Section 240Summary Judgment and Dismissal,Continued • GENERAL CONTRACTOR ENTITLED TO SUMMARY JUDGMENT WHEN PLAINTIFF ACCIDENT NOT PROXIMATELY CAUSED BY STATUTE VIOLATION AND PLAINTIFF FAILED TO PROVIDE SUFFICIENT EVIDENCE TO RAISE QUESTION OF FACT (CAMLICA V. HANSSON, 40 A.D.3d 796 (2d Dept. 2007)).

  44. New York Labor Law Section 240Evidentiary Issues • INCIDENT REPORT MIGHT BE ADMITTED AS A BUSINDESS RECORD AT TRIAL (BUCKLEY V. J.A. JONES/GMO, 38 A.D.3D 461 (1ST Dept. 2007). (I PREFER THAT INCIDENT REPORTS ARE PREPARED.)

  45. New York Labor Law Section 241Purpose • 241 imposes nondelegable duty upon all owners and contractors to provide certain safe appurtenances, and safe place to work, for all of employees at construction site • apparent intention of legislature to place ultimate responsibility for injury on those who are in best position to insure safety of work place • owner's duty to insure that scaffolding employed at work site is constructed, placed, and operated so as to give proper protection to employees is wholly independent of owner's actual control or supervision of workplace

  46. New York Labor Law Section 241History and Evolution • Prior to 1962 the section was phrased in language substantially the same as that appearing today. • In 1962 the Legislature made direction or control a prerequisite to strict liability. • However, in 1969 the section was amended as it now appears with a reimposition of the rule of strict liability.

  47. New York Labor Law Section 241History and Evolution, Continued • Owners of one and two family dwellings are exempted from the strict liability of Section 241 where they exercise no direction or control. • Owners of one and two family dwellings will, of course, be liable in any situation where they direct or control the work, or where negligence may otherwise be proved against them.

  48. New York Labor Law Section 241Application of Section 241 • Applicable to “Construction, excavation, or demolition work”. • Legislature sought to protect workers from industrial accidents specifically in connection with construction, demolition, or excavation work. If the work constitutes “maintenance”, then plaintiff is not entitled to base a claim under Section 241. Nagel v. D&R Realty Corp., 99 N.Y.2d. 98 (Ct. of App. 2002). • If defendant can show that plaintiff’s injuries did not arise from construction, excavation or demolition work, then defendant is entitled to a dismissal of plaintiff’s Section 241 claims. Seee.g. Holler v. City of New York, 38 App. Div. 3d 606 (2nd Dept. 2007).

  49. New York Labor Law Section 241Application of Section 241, Continued • There must be “control, direction, and supervision”. • If the owner or general contractor does not exercise authority or supervisory control over the work site, plaintiff’s Section 241 claims may be dismissed. Seee.g.Berg v. Albany Ladder Co., Inc., 836 N.Y.S.2d 720 (3rd Dept. 2007), and Burnett v. Waterford Custom Homes, Inc., 838 N.Y.S.2d 286 (4th Dept. 2007).

  50. New York Labor Law Section 241Violations of Local Code as a Means of Liability • Plaintiff must establish a causal connection between the code violated and the happening of the accident. • Violation of the code must be a substantial factor in the happening of the accident. • Whether rule applies to the facts is a threshold issue to be addressed by the court as a matter of law. • Whether the code was violated and was a proximate cause of the accident will generally be a question of fact to be determined by a jury.

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