Labor Law §240 – Narrowing of claims of appellate courts

Though originally intended as a “scaffolding” statute, over the years the New York courts expanded the types of actions that could be brought within Labor Law §240. It devolved to a point when almost any injury to an employee on a construction site was subject to “strict liability” under Labor Law §240.

Most recently, however, the New York Court of Appeals appears to be significantly narrowing down the types of claims that may be brought under Labor Law §240. In a recent case in which Faust, Goetz, Schenker & Blee was instrumental, the Court of Appeals found that a fall off of a flatbed truck was not an “elevation-related risk” sufficient to necessitate the extraordinary protections of Labor Law §240.

The Court of Appeals is also moving towards making employees responsible for their own negligence. In Montgomery, the Court of Appeals found for the employer when the employee used a bucket to climb up and down from the elevator housing. The court found that the plaintiff “should have known” that he needed a ladder. This is a significant departure from the prior “strict liability” that found an employer liable for the lack of safety devices.

Furthermore, prior to the recent decision in Cahill, the only defense an employer had against an employee who refused or negligently failed to use available safety devices was the “recalcitrant worker” defense. Historically, this was a very difficult defense for the employer as the employer had the burden of proving that the employee refused to obey an immediate, direct order. In Cahill, the employee was instructed to use safety lines six weeks prior to the accident. This was sufficient to find the employee was recalcitrant and dismissed the Labor Law §240 action.

With the movement away from the heavy liability burdens for employers, it is FGSB’s position to vigorously use the complex litigation and appellate departments to seek dismissal of Labor Law §240 causes of action prior to settlement negotiations or jury trials.