New York Law Journal publishes as article by Jason A. Richman, Esq.

Press Release provided by Jason Richman on April 12, 2017

A similar article follows:

NY Labor Law § 240(1): A Simple Statute Complicated By

Minutiae Overwhelming Fundamental Purpose

- Jason A. Richman, Esq.

LawyerCentral.com, April 12, 2017 — NEW YORK — For more than a century (Stewart v. Ferguson, 164 NY 553 (1900)), construction workers in New York have been entitled to special protections at law when they have been injured by the effects of gravity acting upon their person, or an object, in the vicinity of a construction site elevation differential.  When injuries result from a worker falling from up high, or a thing from up high falling and injuring a worker, that worker is, in the absence of material factual questions, entitled to pre-trial dispositive relief on the issue of liability under the statute (New York Labor Law §240(1); Runner v New York Stock Exch., Inc., 13 N.Y. 3d 599 (2009) [safety devices required by elevation related risks must be provided and properly constructed, placed, and operated]).  This pretrial summary judgment is most commonly awarded where, as in Runner, the plaintiff worker was injured by the failure of a provided device, or the absence of a needed one.

The legislative purpose of this law was clearly articulated and preserved (1969 NY Legis Ann, at 407), and has, for the most part, prevailed in governing the statute's application (Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513 (1985)).  There have been hiccups along the way where sophistry and forests have blocked sight of the trees, but the overwhelming lexical priority of protecting workers over and above all other considerations in applying this statute has greatly limited appellate misapplication of the law.  

That said, every once in a while, a court does issue a decision that causes a knowledgeable bench and bar to resort to onomatopoeic expressions astonishment (e.g. huh!?!).  One such decision was recently issued by the New York Court of Appeals in Nicometi v. The Vineyards of Fredonia, 25 N.Y. 3d. 90 (2015).  This was an appeal that I personally lost as appellate counsel, and that loss may impact the tone of this article, though not its objectivity.

The case involved a 21 year old construction worker on a new construction project helping to build an apartment building utilizing a pair of construction stilts.  He was, by admission, sent into a room with ice on the floor, to insulate that room’s ceiling using the stilts to gain access to the ceiling level task to which he had been assigned.  He was using stilts because without the use of some elevation related safety device (an indispensable crux of the statute’s domain), he could not reach across the elevation differential that separated him from the ceiling level of the work 10 feet above that icy floor; and, as a further matter of admitted fact, no other safety devices were provided or available for his use anywhere at that construction site.  As yet another matter of admitted fact, no step whatever was taken to guard or abate the admitted known icy condition.  The injured worker did in fact foreseeably step on that ice, while looking at the ceiling which he was insulating as directed, causing the stilts to move, shift, slip, and kick out from beneath him precipitating his fall, along with the stilts, to the ground below suffering injuries requiring major spinal surgery.  These facts were all utterly uncontroverted matters of fact before the Court of Appeals, no evidence or even argument disputed any of them.  The Court of Appeals reversed the Appellate Division and trial court’s conclusions that Labor Law §240(1) was applicable to these facts, and modified the 4th Department’s order by dismissing the §240(1) cause of action.  The case then went to trial where it was resolved by directed verdict on the multiple admitted Industrial Code Safety Violations committed in the course of this elevated work from stilts.

The Court of Appeals Majority ruled that this worker using an elevation related safety device called stilts, which are a type of scaffolding (12 N.Y.C.R.R. § 23-5.22), was not covered under Labor Law §240(1), commonly referred to as the Labor Law’s “Scaffold Section,” on the basis of two primary rationales, both plainly errant. 

The first of these plainly errant rationales can be summed up in just a few words from the decision, to wit:

…Unlike ladders, stilts are not "placed" in a stationary position and expected to remain still to ensure their proper and safe use. Rather, stilts are intended to function as extensions of, and move with, the worker during performance of the designated task…

                                                                   Nicometi, 25 N.Y. 3d at 101

This exclusionary impact attributed to the mobility of stilts is misplaced and illogical, as well as being directly contrary to the controlling law (both statutory and decisional).  The Nicometi Decision asserts that stilts are not “placed” and therefore fall outside the protections of the Labor Law, even when they themselves kick out and fall in the course of supporting an elevated worker in the performance of assigned elevated construction tasks.  Incidentally, this errant assertion completely ignores the concomitant explicit statutory requirement of proper “operation”, but, fundamentally, and obviously, stilts are placed, and, as extensions of our feet, which are also placed, they are expected to stay where we place them.  So the Nicometi Court, which is not an authority on the intended purpose of construction site safety devices, in stating the intended function of stilts as it did, contradicted the Department of Labor’s statement of how stilts “are intended to function.”  The Department of Labor, is the authority in New York State charged with the classification, regulation, and oversight of construction site safety devices, and it, in conjunction with a panel of industry experts, defined stilts as follows:

(54)   Stilts.   A pair of devices with foot and leg attachments which are used to elevate a person above a floor or equivalent surface in order to perform work on walls and ceilings. (Emphasis Added)

                                                       12 N.Y.C.R.R. §23-1.4(b)(54)

Stilts are not designed and intended to help workers walk along with the work; they are designed and intended and controllingly defined as a pair of devices “to elevate a person … to perform work.”  Indeed it was for this reason that the Court of Appeals, in its related decision of Melber v. 6333 Main St., 91 N.Y.2d 759 (1998), held that “The stilts, moreover, performed the function Labor Law § 240(1) required of them: allowing plaintiff to safely complete his work at a height” (emphasis added).  The Court of Appeals in Melber found that §240(1) applied to stilts even though they were, presumably, then as now, “not placed” and highly mobile.  The Court of Appeals Majority’s analysis in Nicometi simply makes no sense.  If the Court’s interpretation had been correct, then the rubber feet of stilts, equipped with treads for traction, are not designed or intended to keep those feet from slipping.  So stilts are expected to foreseeably slip out from beneath the workers that they are supporting in the elevated active performance of construction work?  Once placed they are supposed to keep moving?  So if the feet of stilts are not placed, and expected to stay where they are placed until some volitional act of the worker moves them, why did the New York Department of Labor, in conjunction with that same panel of industry experts, in formulating the NY Industr


Jason Richman

Jason Richman

Jason A. Richman, Esq.

Attorney Jason Richman is Member of Jason A. Richman, Esq., a law firm in Victor, New York. As a lawyer in Victor, NY, attorney Richman serves Ontario County, as well as clients throughout New York.
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