Rupert Blake, et al.,
Neighborhood Housing Services of New York City, Inc.,
2003 NY Int. 164
We are presented with the question whether a plaintiff who was injured while using a ladder may prevail in a Labor Law § 240 (1) action even when a jury finds that the ladder was so constructed and operated as to give him proper protection and he was the sole cause of his injury. In deciding the appeal, it is necessary for us to address the concept of strict (or absolute) liability and the predicates for its application under Labor Law § 240 (1).
At the time of the injury, plaintiff operated his own contracting company, and was working alone on a renovation job at a two-family house in the Bronx. Defendant Neighborhood Housing Services of New York City (NHS), a not-for-profit lender, provided low-interest financing to facilitate the project. Acting on the homeowner's application, NHS dispatched a rehabilitation specialist to the premises to assess the scope of the work and the amount of the loan. NHS prepared a work estimate and gave the homeowner a list of contractors, from which she chose plaintiff. At the job site, plaintiff set up an extension ladder, which he owned and used frequently. He acknowledged that the ladder was steady, had rubber shoes and was in proper working condition. When plaintiff began scraping rust from a window, however, the upper portion of the ladder retracted and he suffered an ankle injury.
Plaintiff sued the homeowner and NHS alleging a
violation of Labor Law § 240 (1). All parties moved for summary
judgment. Plaintiff contended that NHS was strictly liable as a
statutory agent under the section for having failed to provide a
proper workplace and mandated safety equipment. In his
deposition, however, plaintiff stated that the ladder was
securely placed and not broken or defective. He also said there
was no need to have anyone hold the ladder while he was using or
ascending it. NHS cross-moved, asserting it could not be liable
because it was not a general contractor or agent within the
The trial court denied plaintiff's 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 plaintiff's 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. 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 plaintiff's claims relating to strict or absolute liability. We also address the issue of plaintiff's 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 concern over unsafe conditions that beset employees
who worked at heights ( see L 1885, ch 214). In promulgating the
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. Vosburg v Lake Shore & M.S. Ry.
Co., 94 NY 374 ; Devlin v Smith, 89 NY 470 ). 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." Although the statute's wording has
evolved, the original, core language is still with us. The
Legislature eventually added other devices,
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
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 co-workers ( see e.g. Kimmer v Weber, 151 NY 417, 421 ; Butler v Townsend, 126 NY 105, 111 ). 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). 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 when a scaffold (or ladder) collapses. We recognized that sound scaffolds and ladders do not simply break apart ( see Stewart v Ferguson, 164 NY 553 ).
The Legislature looked to
employers (and later, contractors and owners) as the entities
best able to control the workplace and provide for its safety,
casting them in liability for their failure to obey the law.
The 1897 statute
was a giant step forward, but it
still left employers free to invoke the plaintiff's contributory
negligence ( see Gombert v McKay, 201 NY 27, 31 ; 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). 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, Inc., , 65 NY2d 513, 521
; Stolt v General Foods Corp., , 81 NY2d 918 ) . 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 terminology in 1923 (under an earlier version of the statute [ see L 1921, ch 50]), holding that employers had an "absolute duty" to furnish safe scaffolding and would be liable when they failed to do so and injury resulted ( Maleeny v Standard Shipbuilding Corp., 237 NY 250, 253 ; see also Amberg v Kinley, 214 NY 531, 545  [Collin, J., dissenting]). We used a similar phrase 25 years later in Koenig (298 NY at 318 [a duty "absolutely imposed"]). In Connors v Boorstein (, 4 NY2d 172, 175 ) the Court, for the first time, worded the concept as "absolute liability" under section 240 (1). We did so again in Major v Waverly & Ogden, Inc. (7 2 332, 336  ["absolute statutory liability"]) and Duda v Rouse (, 32 NY2d 405, 408 1973] ["absolute liability"]).
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 Telephone Co., , 46 NY2d 132, 136 1978]),
regardless of whether they exercise supervision or control over
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 2 at 410), "[v]iolation of the statute alone is not enough; plaintiff [is] obligated to show that the violation was a contributing cause of his fall," and second, that when those elements are established, contributory negligence cannot defeat the plaintiff's 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 ; Bland v Manocherian, , 66 NY2d 452, 461 ).
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
Courts also speak of strict liability in commercial settings, as where the Uniform Commercial Code fastens "strict liability" on a bank that charges against its customer's account any "item" that is not "properly payable" (UCC 4-401; Monreal v Fleet Bank, , 95 NY2d 204, 207 ), and in the check clearing process when a payor bank fails to return an item by midnight of the day following its receipt ( see UCC 4-302[a]; Hanna v First Nat'l Bank, , 87 NY2d 107, 120 ).
Given the varying meanings of strict (or absolute)
liability in these different settings, it is not surprising that
the concept has generated a good deal of litigation under Labor Law § 240 (1). The terms may have given rise to the mistaken
belief that a fall from a scaffold or ladder, in and of itself,
results in an award of damages to the injured party. That is not
the law, and we have never held or suggested otherwise. As we
stated in Narducci v Manhasset Bay Assoc. (96 2 259, 267
), "[n]ot every worker who falls at a construction site,
and not any object that falls on a worker, gives rise to the
extraordinary protections of Labor Law § 240 (1)." Also, the
Appellate Division had recognized as much in Beesimer v Albany
Avenue/Route 9 Realty, Inc. (216 2 853, 854 [3d Dept 1995]),
stating: "the mere fact that [a plaintiff] fell off the
scaffolding surface is insufficient, in and of itself, to
establish that the device did not provide proper protection" ( see
also Alava v City of New York, 246 AD2d 614, 615 [2d Dept 1997]
["a fall from a scaffold does not establish, in and of itself,
that proper protection was not provided"]).
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 Street, Inc. (91 2 759, 762 ), we noted that "we have held that the statute establishes absolute liability for a breach which proximately causes an injury." In Zimmer (65 2 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 2 at 410 ), 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
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 ; 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 under section 240 (1). Here, there is no comparative culpability. As the jury implicitly found, the fault was entirely plaintiff's. The ladder afforded him proper protection. Plaintiff's conduct (here, his negligence) was the sole proximate cause of the accident.
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,"
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.
In Weininger v Hagedorn & Co. (91 2 958, 960
), 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
plaintiff's 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 plaintiff's injury) to occupy the same ground as a
plaintiff's 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 Appellate Division has consistently
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 the sashes and, at the same time, the windows forcibly twisted loose, all while plaintiff was standing on a ladder" ( id. at 460). Further, and also in contrast to the case before us, there was testimony that "the floor upon which the ladder was placed was bare, highly polished and shiny" and that "no safety equipment, safety belts, hard hats, scaffolding or anything else, was used to protect plaintiff from falling through the fourth floor window or to secure the ladder to insure that it remained steady and erect while plaintiff was applying pressure to that window" ( id.).
Bland, then, does not support plaintiff's position or
To be sure, we have long held that "this statute is one
for the protection of [workers] 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" ( Quigley v Thatcher, 207 NY
66, 68 ). But to impose liability for a ladder injury even
though all the proper safety precautions were met would not
further the Legislature's purpose. It would, instead, be a
sweeping and dramatic turnabout that the statute neither permits
nor contemplates. As we recognized in a related context, the
language of Labor Law § 240 (1) "must not be strained" to
accomplish what the Legislature did not intend ( Martinez v City
of New York, , 93 NY2d 322, 326 ). If liability were to
attach even though the proper safety devices were entirely sound
and in place, the Legislature would have simply said so, or made
owners and contractors into insurers. Instead, the Legislature
D. AGENCY UNDER SECTION 240 (1)
Lastly, this case presents the question whether defendant NHS could be liable as an agent of the owner under Labor Law § 240 (1). That section imposes liability only on contractors, owners or their agents. NHS is clearly not a contractor or an owner. An agency relationship for purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job. Where responsibility for the activity surrounding an injury was not delegated to the third party, there is no agency liability under the statute ( Rusin v Picciano & Sons, , 54 NY2d 311, 318 ).
NHS lacked the requisite indicia of agency. Although defendant here coordinated home repair work, it did not involve itself with the details of how individual contractors would perform their jobs. Instead, NHS acted as a lender: it is a non- profit organization that provides low-interest loans. The homeowner retained primary control over decisions on how the renovation project would proceed. NHS did not supervise the contractor; it never instructed workers on how to undertake repairs, and it took only a de minimis role in ensuring that the contractor would complete the financed repairs.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
1 In 1980, the Legislature amended Labor Law § 240 (1) by excepting "owners of one and two family dwellings who contract for but do not direct or control the work" (L. 1980 ch. 670; see generally Bartoo v Buell (, 87 NY2d 362 ); Mandelos v Karavasidis (86 2 767 ).
2 See generally Provisions of the Bills which have Now Become Law, New York Times, May 26, 1885, at 5; Under the New Law, New York Times, July 2, 1885, at 8; The Employer Held Responsible, New York Times, July 7, 1885, at 8; Three Men Killed, New York Times, July 15, 1885, p. 3; Carried Down with the Scaffold, New York Times, Sept. 1, 1885, at 8; Maimed by a Breaking Scaffold, New York Times, Nov. 29, 1885, at 3.
3 See L 1921, ch 50.
4 In the interim, the Legislature enacted additional requirements for scaffolds more than 20 feet from the ground ( see L 1891, ch 214), and authorized police to inspect scaffolding, with misdemeanor consequences for violating the scaffold laws ( see L 1892, ch 517).
5 In 1969, the Legislature amended section 240 (1) to place the responsibility on "all contractors and owners and their agents" in place of "a person employing or directing another to perform labor of any kind" (L 1969, ch 1108).
7 See also Panek (99 2 at 456 ["the section imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty that proximately causes a plaintiff's injury"]).
8 In cases involving ladders or scaffolds that collapse or
malfunction for no apparent reason, we have (ever since Steward v
Ferguson, 164 NY at 553,
9 Labor Law § 240 (1) does not extend to a "recalcitrant worker," meaning one whose refusal to use available safety devices results in injury ( see Hagins v State, , 81 NY2d 921, 923 ). Plaintiff was not a recalcitrant worker.
10 See Meade v Rock-McGraw, Inc. (307 2 156, 159 [1st Dept 2003] ["That the ladder was inadequately secured was due to plaintiff's improper use of it, which would not give rise to a Labor Law violation"]); Heffernan v Bais Corp. (294 2 401, 403 [2d Dept 2002] [defendant raised a question of fact as to whether scaffold failure resulted solely from plaintiff's negligence]); Musselman v Charles A. Gaetano Constr. Corp. (277 2 691 [3d Dept 2000] ["although contributory negligence is not a defense to a valid Labor Law § 240(1) claim * * * liability will not attach if the worker's action were the sole proximate cause of his or her injuries"]); Gomes v State (272 AD2d 440 [2d Dept. 2000] [affirming Court of Claims' dismissal after crediting the State's expert testimony that plaintiff's misuse of an extension ladder was responsible for his accident in which his arm became caught between the rungs when the ladder retracted downward]); Bahrman v Holtsville Fire District (270 2 438, 439 [2d Dept 2000] [question of fact as to whether plaintiff's fall occurred due to his own misuse of a safety device and whether such conduct was the sole proximate cause of his injuries]); Stark v Eastman Kodak Co. (256 2 1134 [4th Dept 1998] [where ladder was not defective and did not move, plaintiff's actions were the sole proximate cause of his injury thus making summary judgment appropriate in favor of defendant, not plaintiff]); Vencebi v Waldorf Astoria Hotel Corp. (143 2 1004, 1005 [2d Dept 1988] [jury question whether accident occurred because scaffold moved or because of plaintiff's method of climbing onto it]).
11 "If you conclude that the plaintiff's action was the only substantial factor in bringing about the injury, you will find for the defendant on [section 240 (1) liability]."