From absolute to relative liability:
recent changes in the Scaffold Law

Although the plaintiff is "required to show that the violation of section 240 of the Labor Law was a contributing cause of [his accident]" (Phillips v. Flintkote Co., 89 AD2d 724, 725), and this issue should be determined by the jury, where there is no view of the evidence at trial to support a finding that the absence of safety devices was not a proximate cause of the injuries, the court may properly direct a verdict in the plaintiff's favor. If proximate cause is established, the responsible parties have failed, as a matter of law, to "give proper protection." (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, citations omitted).

In retrospect these cases appear to have marked the high-water point in a plaintiff-oriented interpretation of the section. Scaffold Law cases that might have been decided at summary judgment are increasingly being tried by a jury: courts have made ever more frequent reference to proximate cause issues and the recalcitrant worker exception: and what was once considered to be a form of absolute liability has now taken on the character of negligence.

That the Court of Appeals has maintained its earlier position is not immediately apparent upon reading Weininger v Hagedorn and Co. (91 NY2d 958), but that case in fact is consistent with Rocovich, Zimmer and many others. What has most "chilled the plaintiff's bar for the past months" (Breakstone, Jay, "Notes & Decisions", New York State Trial Lawyers' Association Bill of Particulars, December 1998, at 16) is the apparent breadth of the Court's pronouncement; as reported in the very brief memorandum decision, the plaintiff "fell from a ladder", and the Court held that the trial judge had improperly directed a verdict for the plaintiff; "a reasonable jury could have concluded that the plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law § 240 (1) did not attach" (91 NY2d, at 960).

This does indeed seem like a break from the past, and there is nothing in the Appellate Division decision that would lead one to a different conclusion. In the lower court, in fact, "[t]he only issue presented *** [was] whether [plaintiff] *** was engaged in the alteration or repair of a structure" (241 AD2d 363, 364). The one mention of the circumstances of the accident is a single sentence in the dissent: plaintiff "was standing on the second or third step of a six-foot metal A-frame ladder *** when the ladder collapsed" (id., at 364-365).

The record on appeal, however, shows that there was evidence before the court that plaintiff was standing on the crossbar of the ladder, a misuse of the device and an act that goes beyond mere negligence. The evidence was controverted by the plaintiff, but clearly raised a question of fact that required a jury finding. The omission of this key fact from all the written decisions is surprising, because it is the best explanation of the Court of Appeals' holding. While the testimony was questionable, it would clearly have been possible for a reasonable jury to conclude that the accident was caused by this misuse rather than any defect in the ladder itself or its placement or operation; this issue of fact would preclude a directed verdict or summary judgment.

Since the ratio decidendi of a case is not the statement of law alone but its result as applied to the facts before the court, Weininger's holding is unexceptional. By its unfortunate failure to set out the facts in the decision, however, the Court of Appeals inadvertently created the impression that fact questions arise in cases where it had always been assumed there were none. Only one Court so far has produced a reported opinion that interprets Weininger with an eye to the facts as seen in the record on appeal; in Joblon v Solow, 1998 WL 709638, the Southern District of New York noted that in Weininger "it was claimed that plaintiff stepped on the crossbar". The others, relying on the language of the Court of Appeals' memorandum decision, have taken it as a confirmation of the trend away from absolute liability that has been apparent for some time.

In Sprague v Peckham Materials Corp. (240 AD2d 392), for example, the plaintiff was repairing an air-conditioning unit while standing on a ladder. He "fell from the ladder on which he was standing when the right leg of the ladder sank into the gravel surface upon which it had been positioned" (240 AD2d at 393). The Second Department held that he was engaged in the repair of a structure, and was thus entitled to the protection of the statute. It went on, however, to state:

Given the absence of evidence demonstrating that the ladder was defective in any way, the issue if whether the ladder provided the injured plaintiff with proper protection as required under the statute is a question of fact for the jury (id., at 393­4).

This reasoning is hardly above criticism. While there was no allegation that the ladder was defective, the Court did find that the accident was caused at least in part by the ladder's being placed on gravel. Labor Law § 240 (1) does not limit itself to the condition and design of the safety devices themselves; it requires that they be "so constructed, placed and operated as to give proper protection". Surely a ladder resting on uneven or unstable soil is not properly placed (see, for example, Cardile v D'Ambrosia, 72 AD2d 544; Haimes v New York Tel. Co., 46 NY2d 132). Since any comparative negligence on the part of the employee is not to be considered (see Rocovich, supra), the plaintiff in Sprague would appear to have met the Court of Appeals' test:

Although the plaintiff is "required to show that the violation of section 240 of the Labor Law was a contributing cause of [his accident]" (Phillips v. Flintkote Co., 89 AD2d 724, 725), and this issue should be determined by the jury, where there is no view of the evidence at trial to support a finding that the absence of safety devices was not a proximate cause of the injuries, the court may properly direct a verdict in the plaintiff's favor. If proximate cause is established, the responsible parties have failed, as a matter of law, to "give proper protection." (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524, citations omitted, emphasis added).

This confusion may account for the increasing number of section 240 cases that are going to the jury on proximate cause grounds. In many of these cases it is hard to see how the proximate cause issue can be distinguished from a back-door reintroduction of comparative negligence; when a worker falls, the only likely causes are defective equipment or carelessness -- which is to say, negligence. When summary judgment is denied in a case like Spenard v Gregware General Contracting (248 AD2d 868), because "it is unclear whether the stepladder failed to provide proper protection *** or whether plaintiff simply lost his balance and fell", it begins to look as if the plaintiff's negligence is becoming an absolute defense to the statute's formerly absolute liability.

Courts are seeing other fact issues where one cases were decided as a matter of law. In Beesimer v Albany Avenue/Route 9 Realty (216 AD2d 853) a worker slipped on wet concrete while working on a scaffold. He was able to hold onto a section of the scaffold and did not fall to the ground, but he injured his back as he pulled himself to safety.

The Third Department reversed the trial court's grant of summary judgment, stating that

The rule in this Department is that when a worker injured in a fall was provided with an elevation-related safety device, the question of whether the device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except where the device collapses, slips or otherwise fails to perform its function of supporting the workers and their materials (216 AD2d at 854, citations omitted).

As the court noted, the Fourth Department has a different rule. (As it omitted to mention, cases such as Sprague would in theory be decided differently in the Third Department, because in that case the ladder slipped.) What is surprising, perhaps, is that the Fourth Department might well have decided the case on a question of law. That court has drawn a distinction between a fall from a height and a fall at a height. Since the Beesimer plaintiff was injured in a slip on an elevated surface, the result would depend on whether he merely fell to the surface of the scaffold (in which case he would not recover) or began to fall off the scaffold. Since in the latter event the device was self-evidently not so built as to prevent such slips from turning into falls from a height, its inadequacy must have contributed to the fall. Plaintiff would then have prevailed on a summary judgment motion.

Perhaps the most troubling recent case is Bernal v City of New York (217 AD2d 568). In Bernal the plaintiff was being lowered from a scaffold on a "Hi-Lo", a mechanical device that had not been used before for this purpose. The "Hi-Lo" hit the scaffold, which then collapsed, injuring the plaintiff. The court affirmed the trial judge's denial of summary judgment to the plaintiff, stating:

a reasonable fact-finder might conclude that the co-worker's conduct was the sole proximate cause of the plaintiff's injuries or that the co-worker's conduct constituted an unforeseeable superseding intervening act (217 AD2d, at 217-8).

Bernal suggests that the protection of section 240 (1) does not extend to accidents caused by co-workers -- making a co-worker's negligence a defense where the worker's own fault is supposedly irrelevant. In addition, it incorporates foreseeability, a negligence concept, into what had been a form of absolute liability based on the type of danger involved.

The safety devices enumerated in section 240 (1) are designed to protect against the manifold hazards of construction work at a height. If they fail to prevent an injury liability will attach, whether or not the devices in use met the general standard of care in the industry or the conduct of the employer was reasonable. It is difficult to see how much clearer the Court of Appeals could be in rejecting negligence concepts in its decision in Zimmer v Chemung Performing Arts:

"'[F]or breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it'".
***
As noted by the Second Department in Kenny v. Fuller Co., 87 AD2d 183, supra, "[t]he primary distinction between sections 240 (subd. 1) and 241 (subd. 6) is that the latter requires a determination of whether the safety measures actually employed on a job site were 'reasonable and adequate', while the former is mandatory in its nature and imposes absolute liability for any injury arising from its breach. The question of * * * circumstantial reasonableness is therefore irrelevant under subdivision 1 of section 240" (id., at p. 186 [citations omitted] ) ( Zimmer v. Chemung County Performing Arts, supra, 65 NY2d at 521, 523).

Foreseeability is the gauge for duty in negligence cases, but in the face of the "flat and unvarying standard" set out in section 240 (1) it has no application at all. (It is not for nothing that then Chief Judge Wachtler protested in Zimmer that the Court was creating insurer's liability.) The "unforeseeable intervening act" relieves the tort defendant because it is outside the scope of his duty; one is not required to foresee and guard against the unforeseeable. Since the duty of the Scaffold Law defendant is measured by a statutory standard, though, without regard for foreseeability, it cannot be "cut off" by an unforeseeable act.

There is a less theoretical problem with the Bernal case, as well. Safety devices are present to save one when things go wrong. Surely the carelessness of co-workers is one of the very dangers to be expected on a work site, and one of the major precipitating factors in construction accidents. Excluding recovery when a co-worker blunders is certainly a long way from the absolute liability once thought to be the hallmark of the Scaffold Law.

Labor Law jurisprudence is currently in a state of flux. In the more parsimonious and defense-oriented nineties the relative certainty that seemed to follow the expansiveness of Zimmer and Bland has given way to a confusing variety of new qualifications, defenses, and doctrines. It is perhaps too soon to predict when or even if the field will achieve a new stability; but it is clear that plaintiffs will have an increasingly difficult task in prosecuting their cases in the years to come.

A shortened version of this paper appeared in the March 10, 1999 edition of the New York Law Journal. The author would like to thank Carol Finocchio, plaintiff's attorney before the Court of Appeals in Weininger, who graciously supplied a portion of her brief to verify the facts in that case.

Written contents are © 1999 Andrew V. Siracuse. Design © 1997 Michael Steinberg.