Labor Law Sec. 240 Myths

Contrary to public representations made by proponents of Labor Law Sec. 240 repeal, there are important limits on owner and general contractor liability under the statute. Some of these have only recently been added by Court of Appeals decisions, discussed below.



Myth 1. If you cause your own accident, you can recover anyway.



An owner or contractor can be held responsible only when the failure to provide proper safety equipment was a cause of the injury and not when the sole proximate cause was the worker's own action. The recent Court of Appeals decision, Blake v. Neighborhood Services of New York City, 1 N.Y. 3d 280, reaffirmed that an owner cannot be held liable where the Labor Law Sec. 240 requirement to provide appropriate safety equipment was met. Moreover, the Blake decision effectively gives workers responsibility for properly setting up safety equipment such as a ladder; if a worker incorrectly sets up such equipment and it fails and the worker is injured solely as a result, there can be no recovery. In this instance, because Blake had not properly locked the extension clips on a ladder before climbing it, he fell and was injured.



In Weininger v. Hagedorn, 92 N.Y. 2d 875, the Court of Appeals also made it clear that if the worker's negligence is the sole proximate cause of the accident, the contractor has no liability. In this case, a ladder had been provided but the worker was injured because he stood on the crossbars of the backside of the ladder, rather than on the steps.



Myth 2. You can recover whenever anything falls on you.



• Labor Law 240 covers only particular kinds of falling hazards. Thus, in Narducci v. Manhassat Bay Associates, 96 N.Y. 2nd 259, the Court of Appeals held that "the worker must show more than simply that an object fell causing injury to the worker." An object that falls and injures a worker must fall while in the active process of being raised or lowered or in the process of being secured. Therefore, workers struck by a tool or a piece of construction debris accidentally falling, or by collapsing chimneys or walls, are unable to recover under Labor Law Sec. 240. Alex Narducci had been standing on a ladder removing a window frame when a piece of glass from an adjoining window fell toward him and he was severely cut.



• Angelo Misseritti was dismantling the scaffolding used to erect a 22-foot high firewall when a gust of wind caused the un-braced wall to collapse and kill him. In Misseritti v. Mark IV Construction, 86 N.Y. 2d 487, the Court of Appeals held that Misserritti's estate could not recover under Labor Law 240, even though the failure to brace the wall led to the collapse, because Misserritti had not been working at an elevated level at the time of the accident (he was working next to the wall), because the "braces" listed in Labor Law 240 as a required safety device referred to equipment used to support elevated work sites and not to shore up completed structures, and because the collapse of a completed wall is not the type of "elevation-related accident that section 240(1) is intended to guard against."



In their dissent, Appellate Division Judges Green and Balio logically enough concluded, "the free standing wall constituted an artificially constructed elevated structure governed by Labor Law Sec. 240(1)," the "fact that decedent previously had constructed a portion of the wall while standing on scaffolding dispels the notion that the wall was at the same level as the concrete pad where decedent was standing when injured," and the "lack of a safety device [bracing] was the proximate cause of the accident."



Myth 3. Labor Law 240 applies to everyone.



Wilfredo Martinez, an environmental inspector, was assigned to check for and identify asbestos in a school as part of an asbestos removal project. He had not been given a ladder. So in order to view the area above a pipe near a ceiling, Martinez climbed onto a desk, grasped the top of a door and pulled himself up higher. He fell and was injured. Although Martinez was performing work that was a necessary and integral part of an asbestos removal project, in Martinez v. City of New York, 93 N.Y.2d 322, the Court of Appeals nonetheless held that inspection work is not within the scope of Labor Law Sec. 240.



Myth 4. A worker can recover for an injury even after refusing to use proper safety equipment that was in place at the site.



If a worker refuses to use a safety device and is injured as a result, the owner or contractor can invoke the "recalcitrant worker defense." For example, where a jury found that the worker deliberately refused to use a scaffold and used a ladder that his supervisor had told him not to use, the worker was deemed "recalcitrant" and not covered by Labor Law Sec. 240.



The recalcitrant worker defense has been well developed by our highest court. If a worker directly refuses to use the safety equipment provided by either his employer or general contactor, then he is prevented from obtaining any recovery. Stolt v. General Foods Corporation, 81 N.Y. 2d 918. This has been well articulated for at least 20 years.



The cases cited above are among those that indicate a trend toward limiting the applicability of Labor Law Sec. 240 in various instances. The statute does not need to be modified or repealed because the courts have addressed these particular situations. Thus, in light of the realities of the application of the Labor Law, repeal or modification of Labor Law 240 would not lead to insurance savings.