In the past quarter century, a vast body of case law has been written about New York's Scaffold Law with varying results for the injured workers seeking relief under this statute.¹

The first paragraph of 240(1) of the Labor Law contains two distinct criteria, each of which comes into play when an injured worker seeks recovery under this statute. In relevant part, Labor Law 240(1) reads as follows:

The first part of this provision sets forth and limits the specific type of job that a worker must be doing at the time of his or her injury. The second part pertains to the various devices necessary to protect the worker from injury while in the performance of his or her duties. The list is not exhaustive as the language includes "other [safety] devices" to provide "proper protection."

It should be noted that the statute itself makes no mention of height or elevation differentials. Such language and its application evolved from the courts as the use of devices such as "scaffolds," "hoists" and "pulleys" refer to working above and/or the lifting or lowering of objects from one level to another. Similarly, there is no mention of "strict" or "absolute" liability. That terminology derived from cases decided by the Court of Appeals commencing in 1923. Blake v. Neighborhood Housing, 1 N.Y.3d 280 (2003).

The statute comes into play when a worker is performing one or more of the enumerated tasks that require his or her employer to provide adequate protection from falling from an elevated position or being struck from a falling object.

As pointed out in Nicometi v. Vineyards, 25 N.Y.3d 90, 96-97 (2015), "it is well settled that 'the extraordinary protections of the statute in the first instance apply only to a narrow class of dangers. More specifically, Labor Law 240(1) relates only to 'special hazards' presenting 'elevation related risk[s]'. Liability may, therefore, be imposed under the statute only where the 'plaintiff's injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential" (internal citations omitted).

The statute does not "encompass any and all perils" that may only be connected in a "tangential" way with the effects of gravity and said statute is not triggered unless the plaintiff's injuries are a direct result from the "elevation related risk" and the "inadequacy of the safety device" provided by the employer. Id.

The duty of the employer is nondelegable and liability will attach unless the worker is the sole proximate cause of the accident or was recalcitrant in using the safety protection(s) provided.

In O'Brien v. Port Auth. of NY & NJ, 29 N.Y.3d 27 (2017), the Court of Appeals, in a 4-3 decision, digressed from the body of established precedent in this area. The plaintiff, working on the ground level of a construction site was tasked with maintaining two welding machines on the same level. As such, there was no elevation differential in the actual performance of his duties. However, it had been raining that day and his injury occurred when he slipped and fell down a "temporary" external staircase/scaffold that was exposed to the elements, as he proceeded to descend to the sub-ground level to get a raincoat from the employer's tool shanty.

The Supreme Court, Appellate Division and the Court of Appeals all determined that this staircase met the criteria of "other devices" thereby expanding the list of protective equipment in the statute. In contrast to those devices specifically enumerated, this staircase was permanently affixed in its position as opposed to ladders, stilts and the like which are movable and subject to collapsing while a worker is standing on them to reach a higher elevation. At no time in the instant case was the plaintiff utilizing the staircase in question to operate his machinery. It's sole purpose was to enable workers to go up or down from one level to another. However, applying the reasoning in Nicometi, whether the plaintiff was performing his construction task or retrieving his raincoat at the exact moment of his injury was of no consequence, as it was all part of a continuous act and the staircase was the protective device that enabled him to do so. Thus, plaintiff's injuries were a "direct consequence of an elevation related risk" and was not considered "a separate and ordinary tripping or slipping hazard." Nicometi, 25 N.Y.3d at 98-99.²

Here, both plaintiff and defendants provided expert witnesses regarding the adequacy of the staircase as a protective device. Plaintiff maintained that he slipped on the wet stairs and could not maintain his grip on the wet handrail he was holding.

The experts contradicted each other as to whether the steps were worn down and their ability to provide traction in inclement weather.

The trial court denied plaintiff's motion for partial summary judgment on his Labor Law 240(1 claim.

The Appellate Division reversed, holding that the staircase was a safety device within the meaning of the statute and that plaintiff was entitled to summary judgment because the staircase did not adequately prevent his falling, "whatever the weather conditions might have been." O'Brien v. Port Auth of NY & NJ, 131 A.D.3d 823 (1st Dept. 2015).

The Court of Appeals then reversed the Appellate Division, making it clear that "the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law 240(1). Moreover, the present case is distinguishable from 'cases involving ladders or scaffolds that collapse or malfunction for no apparent reason' where we have applied a 'presumption that the ladder or scaffolding device was not good enough to afford proper protection.'" O'Brien, 29 N.Y.3d at 33 (citations omitted).

In finding that the plaintiff was not entitled to summary judgment on the issue of liability, the court emphasized that the testimony of the defendants' witness raised questions of fact as to whether the staircase provided adequate protection.³

In a robust and well-reasoned dissent, Judge Jenny Rivera stated that the majority's conclusion "reflects a misunderstanding of the legislative intent and statutory mandates of Labor Law 240(1)." Id. at 34.

The debate between the experts would contravene the legislative intent of placing the "ultimate responsibility for safety on the owner and general contractor" by enabling the experts to "vest owners, contactors and their agents with the authority to promulgate their own protective standards". "[I]t is for the courts, not for those responsible for providing worker protection under Labor Law 240(1), to determine whether the mandates of the statute have been met." Id. at 36 (citing Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523-24 (1985)) (emphasis in original).

Two recent articles regarding O'Brien have divergent points of view as to its implications regarding future litigation invoking Labor Law 240(1).

The first article lauds this case as "increase[ing] the ease with which summary judgment [for the plaintiff] may be defeated."

O'Brien elevates the status of expert witness. Defendants now should routinely retain an expert to examine the scaffold, ladder, etc. in order to provide an opinion of the adequacy of the safety device. This is something that defendants have been somewhat reluctant to do in the past, but must now be seen as required.

By allowing for an evaluation of the adequacy of equipment at the summary judgment phase and by welcoming expert affidavits on this issue, the Court of Appeals has given defendants a fresh opportunity to defend Labor Law 240(1) cases.⁴

The second article takes exception to the position "that O'Brien stands for the proposition that where experts disagree on the adequacy of a safety device, the expert conflict creates a fact question for jury resolution." It states that the Court of Appeals "reaffirmed the strong protections afforded workers under the statute" by including staircases as "the functional equivalent of protective devices." This article rejects the notion that O'Brien has opened the door to a "battle of the experts" and "should be cited for the court's strict adherence to the[] well-established principles" regarding this statute.⁵

This author views the "elevation of experts" approach in the first article as a full frontal attack on the purpose of the statute to place liability where it belongs on the contractors, their agents and the owners of property.

Except for the fact that the majority of the court extended "other devices" to now include staircases, it would appear that the second article is more in sync with Judge Rivera's dissent than the majority opinion which, in fact, placed greater weight on the testimony of the defense expert rather than "reaffirming" the strict liability precedents.

Conclusion

O'Brien appears to be an outlier among the numerous Court of Appeals decisions on the Scaffold Law. Although the majority notes that this case is one of limited application, because the staircase at issue was immovable and not subject to collapsing as are other protective devices, its determination that defendants' expert raised questions of fact sufficient to defeat a motion for summary judgment may have the unintended effect of opening a floodgate of defense experts in subsequent Labor Law 240(1) cases, as one of the articles discussed above encourages.

With the recent loss of Judge Sheila Abdus-Salaam, who voted with the majority, and the appointment of Judge Paul Feinman in her place, it remains to be seen if there will be a shift in the outcome of similar cases in the future.

Endnotes:

1. See George M. Heymann, "New York's Scaffold Law and the Evolution of Elevation," NYS Bar Journal, January 2013, Vol.85, No.1, [Cover Article] for an in depth analysis of Labor Law 240(1)

2. In response to defendants' claims that the plaintiff's injuries were due to his own negligence in descending the staircase, the dissent, referencing Hutchinson v. Sheridan Hill House, 26 N.Y.3d 66, 82 (2015), pointed out that "[i]n another context we have recognized the dangers associated with walking on steps, particularly on the nose of the step, which plaintiff stated was the area in which his foot slipped" (emphasis added); see George M. Heymann, "Size of Defect in Slip and Fall: A Not So Trivial Pursuit," N.Y.L.J., Feb. 4, 2016, p.4, which discusses the trilogy of cases Hutchinson, Zelichenko v. 301 Oriental Boulevard and Adler v. QPI-VIII, 26 N.Y.3d 66 (2015), the latter two pertaining to injuries walking down steps.

3. Notwithstanding the conflicting expert testimony regarding the functionality and adequacy of the subject staircase when wet, would the majority have reached the same conclusion if the plaintiff slipped and fell on the dry interior staircase that was also available to him? As noted in the dissent, the defendant should have roped off the wet staircase and directed the workers to utilize the dry interior staircase limiting use of the external staircase to "dry days."

Although there is no contributory negligence in Labor Law 240(1) cases, plaintiff's awareness of the rainy weather conditions on the day of his injury begs the question as to why he used the wet external staircase as opposed to the dry internal one, regardless of the fact that the external one was not roped off.

4. Andrea M. Alonso and Kevin G. Faley, "The Elevation of the Expert," N.Y.L.J., May 25, 2017.

5. John Zaremba, et al., "O'Brien' Reaffirms Decades of Law Protecting Workers," N.Y.L.J., June 2, 2017.