Construction Accident Cases and the New York Labor Law

(A New York Perspective)

By: Joseph R. Zakhary, Esq.

New York State contains some of the most beautiful, if not awe-inspiring, urban landscapes on earth.  Many impressive structures are located in New York City, a place where there is usually some type of construction activity occurring on any given day of the year.  Simple upkeep of the Big Apple’s cityscape requires thousands of workers to repair, alter, maintain, and clean those buildings.  So much construction-related work, however, poses significant risks to the workers involved in those projects.  According to the New York City Department of Buildings (“NYC DOB”), there were 157 construction accidents in 2010; 128 construction accidents in 2011; and 175 construction accidents in 2012.  In recognition of these realities, the New York legislature has included in its Labor Law three sections within Article 10 (Building Construction, Demolition and Repair Work) that are generally applicable to construction accident litigation: §200, §241(6) and §240(1).  All personal injury attorneys who practice in New York should be familiar with these sections of the Labor Law.

Section 200 is merely a statutory codification of the common law relating to negligence actions.  Accordingly, §200 provides that all construction industry employers have a duty to provide reasonably safe workplace environments by properly maintaining, guarding, and lighting the worksite, as well as properly operating all worksite machinery and equipment.  Just like the common law, if the owner or general contractor did not create the dangerous condition, then the employer must have had actual or constructive notice of it. Similarly, the plaintiff’s comparative negligence can reduce the construction employer’s percentage of liability.  In addition, an owner/general contractor will not be liable if it had no authority to control the working “means and methods” of the activity that caused the accident. Therefore, a subcontractor’s negligent actions will not necessarily be attributable to the owner/general contractor.

Section 241, the Safe Place to Work Law, imposes vicarious liability upon owners/general contractors for the negligence of their general/sub-contractors.  To prevail under §241(6), a plaintiff must prove a violation of the Industrial Code, contained within Title 12 of New York Codes, Rules and Regulations (“NYCRR”). Otherwise, the claim would more properly be brought under §200. Two common Industrial Code violations that have been judicially determined sufficient to support a §241(6) claim are those relating to jobsite cleanliness and adequate illumination.

Of the three Labor Law Sections applicable to construction personal injury actions, §240, also known as the Scaffolding Law, is by far the most onerous to owners/general contractors, and descends from New York’s first dangerous-heights law, which was enacted in 1885.  That law imposes strict liability upon owners/general contractor’s for any injury resulting from an elevation-related hazard while working on a structure.  New York’s  highest court has broadly defined a “structure” to include “any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Lombardi v. Stout, 80 NY 2d 290 (1992).  Section 240(1) provides:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers…and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Labor Law §240(1).

Significantly, a plaintiff’s damages cannot be reduced by their comparative negligence, so §240(1) imposes absolute liability.

It is important to note that §240(1) applies to all gravity-related risks associated with the section’s covered activities, and therefore applies to situations when workers are injured by falling objects and collapsed scaffolding.  In addition, alterations to a “structure” includes work on fixtures to those structures, such as work on an electrical sign, and replacing a camera surveillance system. See Izrailev v. Ficarra Furniture of Long Island, Inc., 70 NY 2d 813 (1987) and Guzman v. Gumley-Haft, Inc., 274 AD 2d 555 (2nd Dept. 2000).

There are only two defenses to §240(1) actions: proximate cause and the recalcitrant worker doctrine. For §240(1) to apply, not only must there be a statutory violation, but the worker’s injuries must have been proximately caused by that violation. See Blake v. Neighborhood Housing Service of NYC, 1 NY 3d 280 (2003).  In addition, a “recalcitrant worker” who refuses to avail himself of safety equipment which has been provided is not entitled to statutory protection.  In 2004, New York’s highest court examined the “recalcitrant worker” defense, and held that “[t]he controlling question…is not whether plaintiff was ‘recalcitrant,’ but whether a jury could have found that his own conduct, rather than any violation of Labor Law §230(1), was the sole proximate cause of the accident.” Cahill v. Triborough Bridge & Tunnel Authority, 4 NY 3d 35, 39 (2004).

In the end, owners and contractors face significant liability for construction site injuries and should be aware of the potential exposure.