Labor Law: Court of Appeals Latest Attempt to Rein in Section 240(1) Liability
On March 30, 2017, the Court of Appeals issued a 4-3 decision in O’Brien v. Port Auth. of N.Y. & N.J., 2017 N.Y. Slip Op. 02466, 2017 WL 1166795. Considering the three new Judges appointed to the Court in the last year, and despite a strident dissent by Judge Rivera, this decision may reflect a significant shift under section 240 of the New York Labor Law. The decision could have the effect of limiting liability under section 240, or at the very least curtailing summary judgment awards. The plaintiff was working at ground level on a rainy day. At the time of the accident, he was heading to his employer’s shanty to get his rain jacket. To do so, he used a temporary exterior metal staircase (also referred to as a temporary scaffold), which was wet due to rain. As the plaintiff stepped off the tread of the top step, his foot slipped and he fell down the stairs, sustaining injury. He was unable to prevent the fall because his hand slipped off the rail, which was also wet. Plaintiff’s motion for summary judgment included an expert affidavit opining that (1) the staircase was “not in compliance with good and accepted standards of construction site safety and practice” because the stairs were “smaller, narrower and steeper than typical stairs,” making it difficult to maintain proper footing; (2) the stairs showed signs of wear; and (3) the anti-slip measures (small protruding nubs) were inadequate as they afforded limited slip protection and were otherwise worn. The defendants countered with their own expert who opined that (1) the stairs were “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather”; (2) the use of perforated holes to allow water to pass and raised nubs to provide traction were sufficient anti-slip measures; (3) the tread depth met good and acceptable construction industry standards; and (4) there was no evidence the treads were worn. The trial Court found issues of fact under section 240(1). While the Appellate Division acknowledged the conflicting expert opinions, it found the plaintiff entitled to summary judgment because the plaintiff fell, such that the staircase as a safety device therefore either malfunctioned or was inadequate to protect the plaintiff against the risk of falling. The Appellate Division granted leave to appeal, asking the Court of Appeals to review its decision granting summary judgment to the plaintiff on his section 240(1) claim. The Court of Appeals reversed, holding that the conflicting expert opinions raised an issue of fact as to whether the staircase provided adequate protection. The Court went on to hold that to the extent the Appellate Division’s opinion can be read to say a statutory violation occurred merely because the plaintiff fell down the stairs, this does not provide an accurate statement of the law. However, this is precisely the way courts have interpreted section 240 – i.e., rarely allowing a jury to decide whether a safety device was inadequate, and considering a plaintiff’s injury prima facie evidence of inadequacy. As such, for the dissenting Judges, liability was undisputed because the stairway is a safety device that failed to adequately protect the plaintiff from the risk of slipping and that failure was a proximate cause of the plaintiff’s injuries. However, the Court’s majority now disputes this interpretation of section 240, and states that a presumption that a device was not good enough to provide proper protection is only valid in cases where the scaffold or ladder collapses or malfunctions for no apparent reason. Where this is not the case, then liability under section 240 will become an issue of fact for the jury and will be subject to the jury weighing competing expert opinions regarding the adequacy of the safety device to afford proper protection, even where the plaintiff is injured using the device in its intended manner. The Court leaves for future interpretation what factors a jury will be allowed to consider as “proper protection” by stating that compliance with industry standards would not, in itself, establish the adequacy of a safety device under section 240. The Court also read the defendants’ expert opinion as stating more than compliance with industry standards but did not elaborate on the “more,” leaving the question of what proof will be sufficient to defeat summary judgment and place the matter before a jury, as well as the question of what will be sufficient evidence of proper protection to sustain a finding of no liability.
The decision appears to rewrite the rules for the courts by curtailing the circumstance in which summary judgment is granted, putting plaintiffs to their proof before a jury and allowing a battle of experts to decide liability, thereby relieving some of the strain of strict liability on defendants.
While trial will remain all-or-nothing, without a liability finding before trial more cases are likely to settle for sums less than under the damage-only regime. Also, subjecting liability to expert proof will require the introduction of all of the facts and circumstances of the accident into trial, and even though the plaintiff’s culpable conduct will not be a defense, the plaintiff’s conduct could in any event influence the jury’s liability finding and/or damage assessment. This decision represents the most significant jurisprudential development under the Labor Law since the introduction of the defenses of “recalcitrant worker” and “sole proximate cause.” It is surely a favorable development for construction industry defendants – a fact not lost on the three dissenting Judges who argue at length that the decision misapprehends the statute’s legislative intent to protect workers under a strict liability standard that allows for a liability determination without reference to industry custom or practice.