For those of us who represent plaintiffs in construction accidents, the Court of Appeals decision in Holly v. Chautauqua, 13 N.Y.3d 931 (2010) was a matter of concern, especially after some observers suggested that it heralded a significant change in jurisprudence under the Labor Law. (See “Accidents Happen Even Under the State Labor Law” NYLJ, June 22, 2010, p.4.)
For those who may not be familiar with Holly, the plaintiff in that case was a bricklayer employed by the masonry subcontractor on a construction project to erect a jail for the County. The defend ants Were the County and the general contractor for the project. Although there was no dispute that the plaintiff fell from a height while performing construction work on a scaffold, and no dispute that additional safety devices would have prevented the plaintiff from falling, the Court of Appeals reversed the Fourth Department decision that had granted summary judgment for the plaintiff under Labor Law §240(1) on the issue of liability.
Naturally, when the Court of Appeals reverses what many may have thought was a “slam dunk” case under Labor Law §240(“1), the plaintiffs’ bar gets concerned. However, upon closer reflection, this Court of Appeals decision does not signal the end of Labor Law §240; and there is actually good news for injured workers who are presenting claims under the statute.
First, though, it is necessary to know the facts of Holly. Since the Court of Appeals decision is only three sentences long, the underlying facts must be obtained from the Fourth Department decision (63 A.D.3d 1558 (4th Dept. 2009)) or from the briefs filed by the parties. The scaffold that plaintiff was working on was only 6½ feet high. He was trying to place a concrete block that weighed 35 to 40 pounds onto the top level to erect the wall that was going to be 12 feet high. This involved lifting this heavy block above his head; the plaintiff claimed that in doing so, and in “fighting” to put it in place, he lost his balance. This brought him, along with the block, to the edge of the scaffold that was 2½ feet away from where he was working. At this point, he fell or jumped and landed on his feet with resulting fracture of the calcaneus.
The rest, as they say, is history. The Court of Appeals reversed the grant of summary judgment for the plaintiff; and now there are attorneys for defendants trumpeting this decision as signaling a change in philosophy by the Court of Appeals. That’s the bad news for the plaintiffs’ bar.
The good news is that the Court of Appeals did not dismiss this case. Instead, it merely remanded it for trial because there were triable issues of fact regarding whether there was a violation of Labor La w §240. Significantly, the Court of Appeals held that these issues of fact exist despite the fact that there was no dispute that the scaffold in question satisfied all OSHA, Industrial Code, and other established safely requirements. The Industrial Code requires safety railings for scaffolds that are 7 feet or higher. See 12 NYCRR §23-5.1(j). OSHA requires guard rails on scaffolds that are over 10 feet high. See 29 CFR §1910.28. Labor Law §240(2) requires guardrails for scaffolds that are more than 20 feet high.
More good news comes from the fact that only one month before Holly was decided, the Court of Appeals decided Runner v. New York Stock Exchange, Inc., 13 N.Y.3d 599 (2009) a decision that has been widely hailed as a return to a more liberal view of Labor Law §240(1). There is no reason to believe that the Court of Appeals is schizophrenic, or that they suddenly decided in Holly to curtain the protections under the statute that were set forth only one month earlier in Runner.
So what does it mean when the Court of Appeals in Holly held that there could still be liability under Labor Law §240(1), despite the undeniable fact that the scaffold in question did not violate any established safety requirements, and despite the fact that the plaintiff admitted that he fell because he lost his balance? What must the plaintiff prove to prevail at trial?
The question that must be resolved is whether the scaffold was adequate to address the foreseeable elevation-related risks that the plaintiff had to face. It is necessary to consider whether it was foreseeable that the worker might lose his balance and fall, and, if so, whether proper safety devices were provided to protect hi m from this risk.
Thus, to say that a worker on a scaffold or ladder “simply lost his balance and fell” should not end the court’s inquiry on the issue of liability under Labor Law §240(1). Instead, it is necessary to consider whether it was foreseeable that the worker might lose his balance and fall; and, if so, whether proper safety devices were provided to protect the worker from the foreseeable risk of falling because he lost his balance. This is what the Court of Appeals explained in Felker v. Corning, 90 N.Y.2d 219 (1997).
In Felker, the Court of Appeals affirmed the grant of summary judgment in favor of a plaintiff who fell as he reached from a ladder over an elevated, open area in order to paint an area of an alcove. Id. at 224. Significantly, the plain tiff in Felker admitted that he lost his balance and fell from the ladder. Id. at 223. The Court of Appeals explained in Felker (id. at 224):
Here, there were two distinct elevation related risks associated with the pain t detail that plaintiff was directed to perform. The first risk was created by the need to elevate plaintiff to the height above the alcove wall, and the stepladder was the enumerated safety device provided to protect the worker from the risk inherent in having to work at a height over eight feet above ground level. No allegations were raised that the ladder itself was defective, that it slipped, tripped, was placed improperly or otherwise failed to support plaintiff at that elevation. Thus, we are not concerned with the adequacy of this particular ladder as a device to safely elevate plaintiff.
More importantly, a second risk was created here by plaintiff’s need to reach over the eight-foot alcove wall and work over an elevated, open area. It is the contractor’s complete failure to provide any safety device to plain tiff to protect him from this second risk of falling over the alcove wall and through the suspended ceiling to the floor below that leads to liability under
Labor Law §240(1) in this case.
A review of the Record on Appeal in Holly reveals that there was no compelling evidence that the manner in which the plaintiff was attempting to erect a wall, using concrete blocks that weighed 35 to 40 pounds each, created a foreseeable risk that he would lose his balance while placing the blocks into position and then fall (or jump) from the scaffold . It might have been helpful for the plaintiff’s counsel in Holly to have asked someone whether workers were required to lift 35 to 40 pounds of concrete blocks over their heads, and whether workers might thereby be caused to lose their balance. If the defendant’s witness had agreed, then the existence of such a foreseeable risk would have required the defendant to provide safety guardrails or other proper protection to guard against workers losing their balance and falling from the scaffold. Such evidence on the issue of foreseeability is probably not required in La or Law §240(1) cases where the ladder, scaffold or other safety device broke or collapsed [see, e.g., Panek v. County of Albany, 99 N.Y.2d 452 (2003)], or where it failed to remain stable and erect [see, e.g., Gordon v. Eastern Railway Supply, 82 N.Y.2d 555 (1993)], or where it failed to comply with established safety requirements [e.g., violations of Labor Law §240(2) or (3), Industrial Code or OSHA provisions].
However, in a case like Holly, if the plaintiff hopes to obtain summary judgment (or to prevail at trial), it will be helpful, and probably essential, to prove that the safety device in question failed to provide proper protection for a foreseeable risk.
Mitchell J. Sassower is the managing partner of Arye, Lustig & Sassower, P.C. He enjoys an excellent reputation as one of the City’s top personal injury attorneys, and has again been selected to the New York Super Lawyers list. He is rated AV ( top rating) by Martindale-Hubbell, and the Institute of Jewish Humanities honored him with its “Attorney of the Year” award. He is a member of the board of directors of the New York State Trial Lawyers Associates, for which he has lectured on law office management and labor law.
