The Remaking of the Scaffold Law:
from Statute to Caselaw

Although this article was written in 1993, the process it outlines remains the guiding force in Labor Law ß 240 jurisprudence. In other states -- Illinois, for example -- "scaffold laws" are interpreted with constant reference to the safety devices listed in the statute. New York courts have not done so; recent decisions seem to show a retreat from the broad liability suggested in the Court of Appeals and Fourth Department cases, but they do so by taking a strict and sometimes confusing view of proximate causation.

This article does not necessarily reflect the views of Justice Siracuse, and I am grateful to him for the opportunity to publish it on this site.

--Michael Steinberg

Labor Law ß 240 jurisprudence has developed around two foci: a shift to insurer's liability and the evolution of the "falling worker or object" test, now equated with the need for the accident to be related to the dangers posed by an elevated work place. This test was the creation of the Fourth Department, and was later adopted, if inconsistently, by the Second; the First was often more restrictive and the Third Department's broad readings frequently drew criticism from the Fourth Department's Justices. With the recent Court of Appeals case of Rocovich v Consolidated Edison (78 NY2d 509), which made the "elevated work place" standard the law of New York State, the scaffold law has undergone a double or even triple metamorphosis. Previously interpreted to require the use of certain safety devices at construction sites and often held inapplicable to negligent plaintiffs, it has become an insurance-like obligation confined to sites where the usual hazards of construction work are increased by differences in elevation between work places.

The statute is now read to impose absolute liability on owners and contractors, the absoluteness of the liability being tied to the unavailability of comparative fault as a defense. it is now clear, for example, that liability will be imposed even if the accident is entirely the result of the plaintiff's own negligence. Yet for the first half-century of the statute's existence courts frequently addressed the question of the plaintiff's fault (see, for example, Wingert v Krakauer , 76 App Div 34, 42). When, in 1948, the Court of Appeals eliminated questions of comparative or contributory negligence, it explicitly did so as a change in the law (Koenig v Patrick Constr. Corp. , 298 NY 313, 317).

The scope of the duty imposed has broadened as the available defenses have shrunk. It was once held that the law required no duty beyond "what is reasonable and practicable" (Italiano v Jeffery Gardens Apts. Section II , 3 AD2d 677, affd 3 NY2d 977). In Zimmer v Chemung County Performing Arts, (65 NY2d 513) and Bland v Manocherian (66 NY2d 452), though, the owner's and general contractor's liability was extended to cases where no safety devices were available which could have prevented the accident. Both decisions attracted significant dissents, which are worth some discussion.

In Zimmer there were no devices available which could have prevented the plaintiff's injury; under the older "reasonable and practicable" standard the defendants had clearly done no actionable wrong. The majority, though, cited with approval the Appellate Division dissent arguing that

[i]f the state of the building art is such that no devices have yet been devised to protect workers operating at such heights in dangerous work, it is illogical to conclude, given the purposes of the statute, that the responsibility of owners and contractors is then negated (Mikoll, J., in Zimmer v Chemung County Performing Arts , 102 AD2d 993, 995, as cited at 65 NY2d 513, 524).

Then Chief Judge Wachtler, dissenting, argued in Zimmer that

the statute places responsibility for safety practices at construction sites on the owner and general contractor, [but] it does not impose upon them insurers' liability when they fail to do the impossible. * * * [N]othing in the available legislative history or in our prior decisions supports * * * [the majority's] conclusion (65 NY2d 513, 526).

encouraging owners and contractors to provide safety devices where possible, and not to provide insurance coverage to their employees (who are already covered by workers' compensation) (supra ).

[a]n insurer's liability without fault is the function of workers' compensation, not Labor Law ß 240 (Bland v Manocherian , 66 NY2d 452, 463, TITONE, J., dissenting ).

Almost the same transformation has taken place in the definition of scaffold. In one early case a temporary arch erected to support the construction of a permanent one was held not to be a scaffold (Haughey v Thatcher , 89 App Div 375). As late as 1950 a beam thrown over a deck was held to be outside the statute (Broderick v Cauldwell-Wingate Co. , 301 NY 182).

It is now the law that any structure or aspect of a structure that is elevated can constitute a scaffold. Indeed, the concept of scaffolding has been removed from the cases, along with the other enumerated safety devices. Workers have been compensated for falling through manholes or through collapsed floors, or off bridgework never intended to be climbed on or walked over.

All three transformations can be seen at work in the Fourth Department case of Spano v Meli (170 AD2d 976), although the facts of the case appear only in the record. The defendants, which included the Catholic Diocese of Buffalo, were being sued by a subcontractor who had been hired to demolish a school building. The plaintiff and his employees were working on the fourth floor. The floor below was occupied by a gymnasium, and to keep it free of pillars the fourth floor was supported by trusses from the roof. According to the employees, the plaintiff ordered them to knock out the trusses. Both of them warned him that once the trusses were removed the floor would collapse. The plaintiff refused to listen, the employees did as they were told, and the floor collapsed, injuring all three. In a decision notable for avoiding all factual discussion the Appellate Division, Fourth Department, reversed Supreme Court and granted summary judgment, although it dismissed the plaintiff's claims under Labor Law ßß 200 and 241 (6).

Embarrassed though the Fourth Department might have been by its decision, the result was consonant with the Court of Appeals' decisions. Before 1948, though, Spano's claim would have failed for three separate grounds. First of all, he was entirely responsible for the accident; it was admitted, for example, that the building was structurally sound. Next, Spano also admitted that no safety devices existed that could have rendered the "work" safe; thus, the owner and general contractor had done everything reasonable and practicable to ensure his safety. Finally, the collapse of a floor would not then have been equated with a fall from a scaffold.

In cases like Spano v Meli the results of this transformation seem like a violation of common sense. But the adoption of the "elevated workplace" test as the exclusive description of 240 liability has had stranger results; certain accidents caused by a defect in the equipment listed in the statute have now been held to be outside its scope. In Ruiz v 8600 Roll Road, Inc. (190 AD2d 1030), for example,

[p]laintiff's decedent * * * was killed when a steel beam being hoisted by a crane from a pile of debris slipped, striking decedent in the head.

Because the fatal injuries plaintiff's decedent sustained were not the result of a fall from an elevated work site or from an object falling from an elevated work surface, Supreme Court properly granted summary judgment dismissing plaintiff's claims based on a violation of Labor Law ß 240.