Blake v. Neighborhood Housing Services of New York City, Inc.

At trial, plaintiff again conceded that he could not identify a defect in the ladder, that it was stable and there was no reason to have it steadied during use. He also revealed that he was not sure if he had locked the extension clips in place before ascending the rungs. At the close of the case, the court asked the jury to indicate on the verdict sheet whether NHS had “the authority to direct, supervise and control Mr. Blake’s work” at the residence. The jury answered yes. In response to the second inquiry (“Was the ladder being used by plaintiff Rupert Blake so constructed, operated as to give proper protection to plaintiff?”), the jury again said yes, leading to the inescapable conclusion that the accident happened not because the ladder malfunctioned or was defective or improperly placed, but solely because of plaintiffs own negligence in the way he used it.

The trial court denied plaintiffs motion to vacate the jury’s verdict and direct one in his favor. The Appellate Division affirmed, stating that “a factual issue was posed as to whether plaintiffs injury was caused by some inadequacy of the ladder or was solely attributable to the manner in which plaintiff used the ladder” and that there were no grounds to disturb the jury’s factual determinations ( 301 AD2d 366 , 367 [2003]). We affirm.

Plaintiff claims that Labor Law § 240 (1) is a strict (or absolute) liability statute and that the court should have set aside the jury’s verdict. In reviewing our scaffold law jurisprudence, several themes are relevant to this case, including the statute’s history and purpose and plaintiffs claims relating to strict or absolute liability. We also address the issue of plaintiffs actions being the sole proximate cause of the accident and whether NHS can be held liable as an agent under the statute.

A. THE HISTORY AND PURPOSE OF LABOR LAW § 240 (1)

The first scaffold law, an ancestor of our Labor Law § 240 (1), was enacted 118 years ago, in response to the Legislature’s

The lawmakers enacted the 1885 statute when personal injury suits of this type were based on common-law duties of a master to a servant (see e.g. Vosburgh v Lake Shore & Mich. S. Ry. Co., 94 NY 374 [1884]; Devlin v Smith, 89 NY 470 [1882]). For that reason, the Legislature aimed this first scaffold law (“an act for the protection of life and limb”) at “[a] person employing or directing another.” (L 1885, ch 314, § 1.) Although the statute’s wording has evolved, the original, core language is still with us. The Legislature eventually added other devices,^[3] but the first statute contained the very words “scaffolding, hoists, stays, ladders” still found in Labor Law § 240 (1). Moreover, the law covered, as it does today, “erection, repairing, altering or painting” of structures. Most tellingly, the lawmakers fashioned this pioneer legislation to “give proper protection” to the worker. Those words are at the heart of the statute and have endured through every amendment.

Even though the first scaffold law exposed violators to civil and criminal responsibility, it fell short of the mark because the employer could escape liability by blaming the employee’s coworkers (see e.g. Kimmer v Weber, 151 NY 417 , 421 [1897]; Butler v Townsend, 126 NY 105 , 111 [1891]). This was changed with an 1897 amendment to the scaffold law, as part of a larger Labor Law initiative dealing with factories, bakeries, tenement-made articles, and the employment of women and children (see L 1897, ch 415, § 18).^[4] The amendment did two things: it placed the onus directly on the employer, and it prompted our Court to interpret the law as creating a presumption of employer liability

The 1897 statute^[6] was a giant step forward, but it still left employers free to invoke the plaintiffs contributory negligence (see Gombert v McKay, 201 NY 27 , 31 [1911]; see also L 1910, ch 352). 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. Our Court, however, did so in 1948, reasoning that the statute should be interpreted that way if it is to meet its objective (see Koenig v Patrick Constr. Corp., 298 NY 313 , 316-317 [1948]). Since then we have steadfastly held that contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff’s injury (see e.g. Zimmer v Chemung County Performing Arts, 65 NY2d 513 , 521 [1985]; Stolt v General Foods Corp., 81 NY2d 918 [1993]). At no time, however, did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace. The point of Labor Law § 240 (1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so.

B. STRICT (OR ABSOLUTE) LIABILITY

Plaintiff asserts, in essence, that despite the jury’s findings he is entitled to recover because Labor Law § 240 (1) provides for strict (or absolute) liability. In addressing this contention, we note that the words strict or absolute liability do not appear in Labor Law § 240 (1) or any of its predecessors. Indeed, it was the Court—and not the Legislature—that began to use this

The Court has also described liability under Labor Law § 240 (1) as “absolute” in the sense that owners or contractors not actually involved in construction can be held liable (see Haimes v New York Tel. Co., 46 NY2d 132 , 136 [1978]), regardless of whether they exercise supervision or control over the work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 , 500 [1993]). Intending the same meaning as absolute liability in Labor Law § 240 (1) contexts, the Court in 1990 introduced the term “strict liability” (Cannon v Putnam, 76 NY2d 644 , 649 [1990]) and from that point on used the terms interchangeably.

Throughout our section 240 (1) jurisprudence we have stressed two points in applying the doctrine of strict (or absolute) liability. First, that liability is contingent on a statutory violation and proximate cause. As we said in Duda ( 32 NY2d at 410 ), “[violation of the statute alone is not enough; plaintiff [is] obligated to show that the violation was a contributing cause of his fall,”^[7] and second, that when those elements are established, contributory negligence cannot defeat the plaintiffs claim. Section 240 (1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions (see Mullen v Zoebe, Inc., 86 NY2d 135 , 143 [1995]; Bland v Manocherian, 66 NY2d 452 , 461 [1985]).

It is imperative, therefore, to recognize that the phrase “strict (or absolute) liability” in the Labor Law § 240 (1) context is different from the use of the term elsewhere. Often, the term means “liability without fault” (see generally 3 Harper, James

Put differently, an accident alone does not establish a Labor Law § 240 (1) violation or causation. This Court has repeatedly explained that “strict” or “absolute” liability is necessarily contingent on a violation of section 240 (1). In Melber v 6333 Main St. ( 91 NY2d 759 , 762 [1998]), we noted that “we have held that the statute establishes absolute liability for a breach which proximately causes an injury.” In Zimmer (65 NY2d at 522), we found that “a violation of section 240 (1) . . . creates absolute liability” and that “[t]he failure to provide any safety devices is such a violation.” Moreover, causation must also be established. As the Court held in Duda ( 32 NY2d at 410 [1973]), the “plaintiff was obligated to show that the violation [of section 240 (1)] was a contributing cause of his fall.” Here, plaintiff has shown no violation of Labor Law § 240 (1).

In support of his claim, plaintiff argues that comparative negligence is not a defense to absolute liability under the statute. This is true (see Raquet v Braun, 90 NY2d 177 , 184 [1997]; Bland v Manocherian, 66 NY2d 452 , 461 [1985]). But we are not dealing here with comparative fault, by which a culpable defendant is able to reduce its responsibility upon a finding that the plaintiff was also at fault. That would be impermissible

C. PLAINTIFF’S CONDUCT AS THE ACCIDENT’S SOLE PROXIMATE CAUSE

Plaintiff argues that he is entitled to recover in the face of a record that shows no violation and reveals that he was entirely responsible for his own injuries. There is no basis for this argument. Even when a worker is not “recalcitrant,”^[9] we have held that there can be no liability under section 240 (1) when there is no violation and the worker’s actions (here, his negligence) are the “sole proximate cause” of the accident. Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.

In Weininger v Hagedorn & Co. ( 91 NY2d 958 , 960 [1998]), we held that “Supreme Court erred ... in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause” where “a reasonable jury could have concluded that plaintiff’s actions were the sole proximate cause of his injuries, and consequently that liability under [section] 240 (1) did not attach.” Contrary to plaintiff’s claim, the Appellate Division has held (both before and after Weininger) that a defendant is not liable under Labor Law § 240 (1) where there is no evidence of violation and the proof reveals that the plaintiffs own negligence was the sole proximate cause of the accident. Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiffs injury) to occupy the same ground as a plaintiffs sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation. That is what we held in Weininger, a holding the Ap

As in Weininger, the record now before us fully supports the jury’s findings that there was no statutory violation and that plaintiff alone, by negligently using the ladder with the extension clips unlocked, was fully responsible for his injury.

Plaintiff relies heavily on Bland v Manocherian ( 66 NY2d at 457 ). There, the jury found that the ladder in question was not “placed so as to give proper protection to the plaintiff’ and that “improper placement of the ladder [was] a proximate cause of the accident” (id.). We held that “[t]he jury was clearly entitled to find that, under the circumstances, defendants failed to satisfy the responsibilities imposed by section 240 (1) in that they had not ‘erected’ or ‘placed’ the ladder from which plaintiff fell in such a manner, or with such safeguards, as necessary to provide plaintiff with ‘proper protection’ while he was working on defendants’ building” (id. at 460).

In reaching this conclusion, we noted the nature of the work the plaintiff had to perform while on the ladder and the conditions at the work site. “[P]ressure would have to be applied to