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What role for industry standards in the Scaffold Law? Reversal in the Court of Appeals sends plaintiff's Labor Law section 240(1) case back down to the trial court for findings of fact

by Thomas R. Maeglin

New York Labor Law practitioners will have food for thought in a 4-3 decision of the New York Court of Appeals, O'Brien v Port Auth. of N.Y. & N.J., __ N.Y.3d __, 2017 NY Slip Op 02466 (March 30, 2017). The majority decision found triable issues of fact in a Labor Law section 240(1) claim, based upon a fall on a wet, slippery metal staircase.

The four Judges in the majority found that the Appellate Division had erred when it reversed a motion court's order denying the injured plaintiff's motion for summary judgment upon its claim against the owner and general contractor of a construction project under Labor Law section 240(1), sometimes known as the "Scaffold Law". This law affords protection to construction site workers who are exposed to the risks of working at elevated heights.

In this case, the worker was descending a temporary exterior metal staircase (a "temporary scaffold") at the end of a rainy day, when his foot slipped at the tread of the top step. He reached for the handrail, but it was wet and he could not catch hold. Later, he sued the owner and general contractor of the project seeking recovery for the serious injuries he sustained in the fall. The case proceeded to cross-motions for summary judgment on the defendants' liability under Labor Law sections 240(1) and under 241(6), which allows damages for violation of the New York Industrial Code provisions relating to slipping hazards. In support, the parties submitted their experts' affidavits, which opined, among other things, upon the stairs' compliance with industry standards.

The motion court granted the plaintiff's motion for summary judgment on liability on the 241(6) claim, but denied the motion relating to 240(1), finding an issue of fact as to whether the staircase provided proper protection. Appeal was taken, and a divided court modified the order, granting plaintiff's motion for partial summary judgment on the 240(1) claim. The court then granted leave to appeal to the Court of Appeals.

In its decision, the majority found questions of fact "as to whether the staircase provided adequate protection" based upon various assertions of the defendants' expert: that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather; that additional anti-slip measures were not warranted; and disputing that the staircase was worn down or unusually narrow or steep.

Three Judges disagreed. The Dissent, authored by Judge Rivera, warned that the majority's decision "threatened the vitality" of 30 years of Labor Law jurisprudence. What concerned the dissenters is whether Scaffold Law liability of owners, contractors and their agents should be determined with reference to industry custom and practice.

The statute was intended for the protection of workers by placing ultimate responsibility for safety practices at construction sites on the property owner and general contractor. The pillars of the statute, for Judge Rivera, are essentially three ideas: the concept of giving "proper protection for workers so employed on the work site"; the liberal construction of the statute to achieve the purpose of protecting workers; and the authority vested in the courts to determine whether the standard of care has been met.

According to the Dissent, the Appellate Division had properly ruled in favor of plaintiff by finding that 240(1) applied to the risk and that the safety device provided to the worker (the temporary scaffold) malfunctioned or was inadequate to protect him from falling. Experts offered by the parties had suggested what is, or is not, "good and accepted standards of construction site safety and practice" and "industry standards and practice". But those opinions could not have raised an issue of fact. The Dissent noted a key legal distinction: "Although industry practices, custom and usage may be relevant to determination of violation of [sections] 200 and 241(6) of the Labor Law, 'where injury is allegedly caused through a violation of section 240(1), which establishes its own unvarying standard, evidence of industry practice is immaterial.'" Thus, in the dissenters' view, finding a question of fact on the 240(1) claim, based upon industry standards, was not only illogical but also "antithetical to the legislative scheme". It "would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite."

Can reference to "industry standards" substantially change the protections of the Scaffold Law? This question will be open for debate for some time to come.

If you have questions about the O'Brien decision, or liability under New York Labor Law, contact Glenn A. Jacobson.