LL240: court validates 'recalcitrant workers' defense.

For more than a century, New York's "Scaffold Law", now known as Labor Law Section 240(1), has provided for strict liability against owners, contractors and their agents with respect to construction workers who sustain elevation-related accidents.

This strict liability statute has been the bane of construction industry employers for years.

Its repeal or modification has been at or near the top of the legislative agenda of all major New York construction industry trade associations. Because of this law, there has been no meaningful defense available to New York employers in the event of a "fall" type accident on a construction site. It also has been a major contributor to New York State's extraordinary Workers Compensation insurance rates. Virtually every other state has reformed its comparable statute, but the alliance of lobbyists for the trial lawyers and organized labor in New York State has presented an impregnable opposition to reform.

However, the New York Court of Appeals, the state's highest court, may now be providing the reform that the legislature has for so long steadfastly deprived the industry.

Over the years, New York courts have interpreted the statute to impose absolute liability against contractors, owners and their agents.

Under this broad liability, even owners and contractors not directly involved with a construction accident could be held liable, regardless of whether they actually supervised or controlled the work. Recently, New York's Court of Appeals has begun to redefine the scope of the Scaffold Law, scaling back the almost unlimited liability of employers who are not negligent. In a prior article we described the impact of Blake v. Neighborhood Housing Services of New York City Inc.

There, the court held that where the sole proximate cause of an accident is found to be the worker's own negligence, and there is no evidence of any violation of the safety requirements, Scaffold Law liability would not apply.

In the recent case of Cahill v. Triboro Bridge and Tunnel Authority, the New York Court of Appeals further defined the limits of the Scaffold Law and the applicability of the "recalcitrant worker" defense.

Background

Cahill was a construction worker employed in the rehabilitation of the Triboro Bridge. His work required regular trips up and down the sides of the bridge that had been covered with "forms". Employees performing this work wore safety harnesses equipped with lanyards that could be attached to a hook on the safety lines. The general contractor and Cahill's employer held regular safety meetings, which included frequent instruction on the proper use of safety lines. Several weeks before the accident, Cahill's supervisor "caught him" climbing without using a safety line, and he had been reprimanded and instructed to use the safety equipment.

On the day of the accident, Cahill was working on the upper part of a "form" applying grease from a bucket to certain rods. When he ran out of grease, he went to the ground level to refill his bucket and started to climb back to his position. There was a safety line within ten feet of his location and he could have attached himself to it to climb back up the form.

Cahill, however, chose instead to use a "position hook" on his safety harness, to climb up the crossbeams. The hook was not intended for use in climbing, but designed to hold him in a stationary position while he worked. He was in the process of climbing to the next level and had disengaged the position hook when he fell 10-15 feet and was injured.

Cahill sued the general contractor and the owner, Triboro Bridge and Tunnel Authority, under several theories, including violation of Labor Law 240(1).

The plaintiff moved prior to trial for summary judgment seeking the application of strict liability under the Scaffold Law. The Triboro Bridge and Tunnel Authority interposed the recalcitrant worker defense, arguing that proper safety equipment and training were made available to Cahill, but that he purposely avoided using them. The trial court granted summary judgment to Cahill and held that the "recalcitrant worker" defense did not apply because Cahill did not disobey a direct order made "immediately prior" to the accident to use the harness or other safety device. The Appellate Division, First Department, affirmed this decision, but asked the Court of Appeals to decide whether the recalcitrant worker defense applied.

Decision

The Court of Appeals reversed the grant of summary judgment to Cahill and directed that the question of Cahill's culpability under a recalcitrant worker defense be submitted to a jury at trial.

Citing its decision in Blake v. Neighborhood Housing Services, the court noted that, in order to recover under the Scaffold Law, there must be some evidence that a violation of the law by the contractor or owner was the proximate cause of the accident, as opposed to Cahill's sole negligence.

In assessing Cahill's activities, the court noted that his actions in shunning the safety ropes and choosing to climb 10 feet away from them may well fit the "recalcitrant worker" definition and be the sole proximate cause of the accident.

Accordingly, there was a factual question that should be submitted to the jury. The court directed that the case be returned to the trial court for resolution of this question of fact.

Commentary

The Blake and now the Cahill decisions indicate that New York's highest court is now willing to recognize that there are limits to the imposition of strict liability upon contractors and owners under the Scaffold Law and that previous decisions to the contrary should be reassessed. The "recalcitrant worker" defense does not require a direct contradiction of an order issued "immediately" before the accident, as some courts had recently held. The defense is applicable should a jury find that the injured worker had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.

The court held that the sole cause of the worker's injuries would be his own negligence, and there can be no strict liability imposed upon contractors and owners under the Scaffold Law under those circumstances.

In effect, New York's highest court has reintroduced concepts of common sense to the application of Labor Law 240 and continues its very recent trend of reassessing the "strict liability" aspects of the Scaffold Law.

HENRY L. GOLDBERG, ESQ.,

GOLDBERG & CONNOLLY