Brooklyn Court Expands Defendants’ Liability under Labor Law §240(1)

By Arlene Gharabeigie

A recent Kings County decision may open the door for expanded liability against defendants in construction accident cases.  In Cortes v. McGuiness Condos, 2009 NY Slip Op 52021U (Kings Cty Sept. 30, 2009),the Court granted summary judgment against both the owner and masonry subcontractor of a planned Brooklyn condo project.   J. Martin Schneier held that notwithstanding the fact that plaintiff construction worker, Cenovia Cortes, may have been  partially to blame for his accident, he was nevertheless entitled to summary judgment as  a matter of law pursuant to his Labor Law §240 (1) violation claim.

Labor Law §240(1), otherwise known as the “Scaffold Law”, was originally enacted to protect workers from height-related accidents in construction cases involving injuries sustained from falling from a height or from a fallen object.   While originally intended for skyscraper workers, courts have liberally construed the statutory scope and held that owners and general contractors are strictly liable for these types of injuries.   In order to recover on the Labor Law 240 (1) claim, a plaintiff must prove that the defendants breached a statutory duty to provide adequate safety devices and that the breach was a proximate cause of the injury.   J. Schneier held that plaintiff had met this burden.   To defeat such a claim, a defendant’s sole recourse is to demonstrate that plaintiff was the sole proximate cause of the accident. 

In this case,plaintiff was directed to leave the area where the accident occurred as bricks were being hoisted overhead.  After initially complying with the directive, he returned prematurely and was subsequently injured when one of the bricks slipped from its tong, hitting the plaintiff’s hard hat.  In opposition, the defense argued that the plaintiff was the sole proximate cause of his injury and was a recalcitrant worker.   In support of this argument, they claimed that the plaintiff had been directed to leave the area while the bricks were hoisted and yet returned to the site.   However, the Court held that the finding that defendants failed to provide an adequate safety device effectively precluded a finding that plaintiff was the sole proximate cause.   

Citing a 2003 Court of Appeals opinion, Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280 (2003), J. Schneier notes that "it is conceptually impossible" for the plaintiff to be the sole proximate cause of his injury in the face of a statutory violation that serves as the proximate cause for his injury.    Once the plaintiff has established that his injury was caused, at least in part, by virtue of the defendant's violation of a particular safety statute, an owner and/or contractor will be held strictly liable, irrespective of the plaintiff's role in the accident.  Essentially, the Court found that the two tenets are incontrovertibly mutually exclusive of one another.  

Moreover, with respect to defendants’ recalcitrant worker defense, the defense requires a showing  that plaintiff refused safety devices provided by the owner or employer.   Here, there was no showing that such devices were offered to the plaintiff.   Mere evidence of instructions to the plaintiff to leave the area were insufficient to support the recalcitrant worker defense, particularly since plaintiff largely complied with these instructions. 

The Court ultimately granted summary judgment to plaintiff as against the owner, McGuiness, and the subcontractor Adventure Construction Corp and denied summary judgment against the general contractor, Superior, pursuant to the New York Workers Compensation Law.  It also granted Superior’s own motion for summary judgment on the same Workers Compensation grounds.