Reforming New York Labor Law section 240(1).

• Author: Greagan, William J.

1. INTRODUCTION

   Section 240(1) of New York's Labor Law is unique in state law. No other state has a similar statute. It imposes a nondelegable, absolute liability on owners and general contractors for construction-related injuries, even though the liable party does not perform the work, supervise the work, or employ the injured worker. (1) Moreover, the injured worker is not responsible for his own comparative negligence. (2) The current scope of this liability renders owners and general contractors de facto insurers of the worksite with uncontrollable and limitless liability. Unlike insurance companies whose liabilities are limited to their policy limits or workers' compensation carriers whose obligations are statutorily limited, owners and general contractors have no such protection or liability caps. (3) Nothing in the language of the statute makes this so. In recent years, there have been several efforts to reform the statute legislatively, but these efforts have failed. (4) Judicial interpretation is responsible for the expansion of liability and judicial reform is necessary and appropriate to correct the current imbalance.

2. THE RATIONALE

   The "Scaffold Law" was first enacted in 18855 and in its current version provides that:

   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, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (6) According to the Court of Appeals, section 240(1) was enacted because

   [w]orkmen ... who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. (7) The court further explained:

   By its force, certain safeguards [were] legislatively commanded for the safety of those engaging in the work described. Instead of simply defining the general standard of care required and then providing that violation of that standard evidences negligence, the legislature imposed upon employers or those directing the particular work to be done, a flat and unvarying duty. [Thus,] the language of the section makes crystal clear: the employer or one directing the work "shall furnish" or cause to be furnished equipment or devices "which shall be so constructed, placed and operated as to give proper protection" to the one doing the work. For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it. (8) The Court of Appeals declared that "this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed." (9) The declaration that the statute should be "construed as liberally as may be" first appears in Quigley v. Thatcher. (10) It is without citation or explanation. (11) Despite this, this rule of construction has been used in approximately 100 decisions interpreting Labor Law section 240 and as a rationale in every case where the Court of Appeals has expanded its reach. (12)

3. PLAINTIFF'S CONDUCT NOT CONSIDERED

   Originally, the statute made employers liable but,

   left [them] free to invoke the plaintiffs contributory negligence. Indeed, throughout all the scaffold law's amendments, including the present section 240(1), the statutory language has never explicitly barred contributory negligence as a defense. [The Court of Appeals], however, did so in 1948, reasoning that the statute should be interpreted that way if it is to meet its objective. Since then [the Court of Appeals has] steadfastly held that contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiffs injury. (13) The court explained that,

   [o]nly when the statute is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence. This rule is based upon the view that, not being dependent upon proof of specific acts of negligence on defendant's part, the cause of action may not be defeated by proof of plaintiff's want of care. Thus, it has been said, "If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute." (14) It would be strange, therefore, if the same negligence could defeat the operation of the statute. (15)

   Contributory negligence meant that if the plaintiff was even one percent responsible for his injuries, he was barred from recovery. (16) This harsh rule was eliminated in 1975 and was replaced by the rule of comparative negligence. (17) The legislature intended CPLR section 1411 to be "applicable not only to negligence actions, but to all actions brought to recover damages for personal injury, injury to property or wrongful death whatever the legal theory upon which the suit is based." (18) Despite this, the courts have never fully analyzed why it should not apply to Labor Law section 240. The court in Bland v. Manocherian, (19) concluded "that the diminishment of liability by a comparative evaluation of the injured party's culpability would, indeed, be disallowed where thus proscribed by public policy." (20) It concluded that it was against public policy based upon Zimmer v. Chemung County Performing Arts, Inc., (21) which relied on Koenig v. Patrick Construction Corp. (22) The court seems to treat "contributory negligence" and "comparative negligence" as synonyms; however, proof of contributory negligence results in dismissal of the worker's case, whereas comparative negligence merely results in a reduction in the damages recoverable by the worker. (23) The "public policy" rationale is difficult to understand, since the rule barring contributory negligence was a judicial interpretation to satisfy what it perceived to be the legislature's intention whereas the legislature explicitly announced its intention to apply comparative negligence to all actions for personal injury "whatever the legal theory." (24) Did the court really mean to say that an act of the legislature violates public policy, rather than define it?

4. ABSOLUTE LIABILITY

   The court concluded that the duty imposed upon owners and general contractors by the statute was "a flat and unvarying" one, rendering them liable for a violation of their proscriptions even though the actual work might have been performed by an independent contractor. (25)

   This nondelegable duty was made designedly broad to reach those who were thought to have the over-all responsibility for the construction of a building in which the Legislature deemed a particular employment inherently hazardous, irrespective of fault and despite lack of control. Thus, a violation of [the statute], causing injury to a member of the protected class was held to have imposed absolute, first instance liability upon an owner or general contractor unrelated to questions of negligence. (26) "Prior to 1969, this section placed liability for its violation upon 'A person employing or directing another to perform labor'; it now unqualifiedly places liability upon 'All contractors and owners and their agents,' duplicating the language of section 241." (27) Under both amended sections, an owner no longer need be the employer of the worker or one directing his labor in order to be subject to liability. (28) "Furthermore, section 240 no longer contains any provision spelling out responsibility of subcontractors for compliance with the duties that section imposes." (29) The fact that the amendments removed subcontractors and employers from its scope reinforces the conclusion that the legislature intended the duty to be nondelegable.

   Section 240 is

   "a self-executing statute which, containing its own specific safety measures, does not defer to the rule-making authority of the [Industrial Board of Appeals]." Thus, a violation of section 240(1) or the first five subdivisions of section 241 creates absolute liability. (30) Moreover, "the failure to provide any protective devices for workers at the worksite establishes an owner or contractor's liability as a matter of law." (31) According to the Court of Appeals, Labor Law section 240(1) is

   as "absolute" in the sense that owners or contractors not actually involved in construction can be held liable, regardless of whether they exercise supervision or control over the work. Intending the same meaning as absolute liability in Labor Law [section] 240(1) contexts, the Court in 1990 introduced the term "strict liability" and from that point on used the terms interchangeably. ... ... [T]he phrase "strict (or absolute) liability" in the Labor Law [section] 240(1) context is different from the use of the term elsewhere. Often, the term means "liability without fault", as where a person is held automatically liable for causing injury even though the activity violates no law and is carried out with the utmost care. Illustrations include blasting activities, keeping wild animals and discharging petroleum. We also refer to strict liability when...