Labor Law Section 240(1) requires “contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure” to “furnish or erect, or cause to be furnished or erected for the purposes 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.”
This section was specifically designed to pre- vent accidents caused by protective devices that, courts have stated, “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.”
The Court of Appeals, in Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993), explained that the hazards Labor Law §240(1) contemplates “do not include any and all perils that may be connected tangentially to the effects of gravity, but rather [are] limited to specific gravity-related accidents, like someone falling from a height or being struck by a falling object.”
Additionally, the high court, in Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 340 (2011), held that “not every construction-site fall gives rise to the extraordinary protections of Labor Law §240(1). Rather, liability is contingent upon the existence of a hazard contemplated in Section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.”
The mere fact that a worker fell from a height, therefore, does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury. In order to prevail under Labor Law §240(1), an injured party must establish that the contractor, owner, or agent violated the statute and that the violation was a proximate cause of his injuries.
Although the worker’s contributory negligence is not a defense to a Labor Law §240(1) claim, where plaintiff’s actions are the sole proximate cause of the injuries, liability under the section does not attach. Therefore, as outlined in Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 (2006), “when defendant presents some evidence that the device(s) furnished was (were) adequate and properly placed but that plaintiff’s conduct (i.e. the manner in which he used the ladder) may have been the sole proximate cause of his injuries (such as where plaintiff simply lost his balance and fell), partial summary judgment as to liability will be denied because factual issues exist.”
The Cutaia Decision
But what about the situation in which an electric shock precipitates the worker’s fall from a height? Can a ladder really be labeled inadequate if it fails to protect a worker under such a circumstance? Should contractors and owners, and their agents, be deemed liable pursuant to Labor Law §240(1) as a matter of law if the device they had provided did not prevent the worker from falling follow- ing an accidental contact with electric- ity? Earlier this year, the First Department addressed this interesting issue.
In Cutaia v Board of Mgrs. of the Varick St. Condominium, 172 A.D.3d 424 (1st Dept. 2019), the “only safety device” that plaintiff—who fell after experiencing an electric shock—had been given was an “unsecured and unsupported A-frame ladder which could not be opened, locked into position, or anchored, and which the worker had
to fold and lean against a wall in order to perform his job function.” Plaintiff’s expert opined that the ladder would have remained stable even after the worker suffered the shock had it been anchored to the floor or wall, and that, given the nature of the work (to wit, cutting pipes and using hand tools at an elevated height), plaintiff should have been furnished a Baker scaffold or a man lift.
The appellate court noted that “it is sufficient...that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent,” and “the fact that the fall was precipitated by an electric shock does not change this fact.” Further, the court examined the various alleged injuries, differentiating between those resulting from the shock (i.e. electrical burns), and those “clearly attributable” to the fall (i.e. damage to the spine and shoulder which required multiple surgeries).
The First Department dismissed the distinctions in injury as “questions of fact as to damages, but not liability” and reversed the lower court, granting summary judgment for plaintiff on liability. “There is nothing in the statute,” the court wrote, “that indicates that the legislature intended to exempt from the protections of Labor Law §240(1) a worker who falls from an unsecured ladder after receiving an electric shock.”
The majority acknowledged Nazario v. 222 Broadway, LLC, 28 N.Y.3d 1054 (2016), in which the Court of Appeals reversed summary judgment for plaintiff who had sustained an electric shock and held that “questions of fact exist as to whether the ladder failed to provide proper protection and whether plaintiff should have been provided with additional safety devices.” The Cutaia court opined, however, that, unlike plaintiff in the case at bar, the worker in Nazario evidently fell while “holding (a) ladder which remained open and locked when it landed,” and, thus, apparently, it was not “defective” or in need of another device to be rendered safe.
The Dissent
The dissent in Cutaia dove deeper into the facts than did the majority, noting that, twice prior, plaintiff had opened the same 10-foot, rubber-footed ladder and ascended and descended without incident. On the subject occasion, however, he predicted that the ladder would not open completely in the assigned area, so he folded it, placed it on an even surface and leaned it against the wall. In addition, while he had previously solicited a co-worker to hold the device, plaintiff testified that, on this occasion, the ladder was “sturdy up against the wall” and “was and remained steady” as he cut the piping.
The dissent identified “three major flaws in plaintiff’s theory in support of summary judgment”: His expert did not elaborate on how a scaffold or man lift could have possibly fit into a space so confined that an A-frame ladder could not be opened there; plaintiff contradicted his own expert with respect to the ladder’s stability and sturdiness, as did other witnesses; and plaintiff’s evidence failed to explain how the proposed alternative safety devices could have prevented him from falling after contacting a live wire.
The dissent added that “a claim under Section 240(1) still requires proof that an injurious fall from a height, even when induced by an electrical shock, was proximately caused by the inadequacy of the safety devices provided. Here, there was no credible proof that the A-frame ladder was defective or an inadequate device for the plumbing work that plaintiff was performing.” He continued, “In the absence of evidence that the ladder was defective or that another safety device was required, actual issues pertaining to causation and liability are presented for trial, precluding strict liability favoring the plaintiff.”
Where Cutaia Gets It Wrong
The authors agree with the dissent’s approach in Cutaia. Ladders are designed, manufactured, and sold to give users a reasonably safe way to reach certain elevations; not to protect them from electric shocks or every other hazard attendant
in the workplace. They are safe if they are sturdy, level, structurally uncompromised, capable of supporting specified amounts of weight, and used properly. If a shock initiates the falling sequence—whether or not the ladder also falls—then it is the jolt of electricity that has proximately caused the occurrence, and not the ladder’s purported protective failings or the “force of gravity,” and courts should judge the viability of
a plaintiff’s summary judgment motion based on Labor Law §240(1) in that light.
Those involved in investigating, defending, and adjusting these claims must focus on the precise reason plaintiff fell from a height. If the proximate cause is something other than inadequacy in the equipment provided to allow the worker to reach a certain elevation, the defense must argue that the device was reasonably protective and safe, and that the party to be charged did not violate Labor Law §240(1).