The Court of Appeals recently issued three decisions on the so-called Scaffold Law, New York Labor Law 240(1), taking on both of the elements required to impose Scaffold Law liability (that a plaintiff is engaged in a “protected activity” and faced with a “height-related risk”) in the first two cases, and in the third case, addressing the “sole proximate cause” defense. The Court of Appeals continues to take a pragmatic approach to the question of whether a given task is a “protected activity,” focusing on the physical alteration to a building or structure, and may be slightly narrowing the scope of what can be considered an “elevation-related risk,” by emphasizing the requirement that an enumerated safety device would have prevented the accident; and the court remains resistant to the “sole proximate cause” defense.
In Saint v. Syracuse Supply, Inc., 2015 NY Slip Op 02802, the court clarified the application of the “protected activity,” i.e., erection, demolition, repairing, altering, painting, cleaning or pointing a building or structure, analysis to billboard construction. Although the Court of Appeals has previously held that changing the vinyl advertisement on the face of a billboard does not constitute a “protected activity,” because there is no change to the structure of the billboard, in Saint, the court held that because the installation involved enlargement of the billboard by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails, the work did involve a physical alteration of the structure of the billboard. Since the work involved a physical alteration to the structure of the billboard, the court concluded that plaintiff was engaged in a “protected activity.” The lesson here is that the court will look to the physical requirements of the project, rather than relying on a categorical approach in determining whether the plaintiff is engaged in a “protected activity.”
In Nicometi v. Vineyards of Fredonia, LLC, 2015 NY Slip Op 02801, the court analyzed whether a worker who slipped on a patch of ice while using stilts to install insulation in a ceiling was subjected to an “elevation-related risk.” The majority refused to distinguish an earlier decision refusing to apply the Scaffold Law to an accident involving stilts, Melber v. 6333 Main St., 91 NY2d 759 , and held that because stilts are not an enumerated safety device, the accident did not implicate the Scaffold Law. The court’s decision may indicate that the court is limiting the scope of “elevation-related” risks to accidents that could have been directly prevented by an enumerated safety device, such as a scaffold or ladder.
In Barreto v. Metropolitan Tr. Auth., 2015 NY Slip Op 03875, the plaintiff stepped into an uncovered manhole, being fully aware that the manhole cover had been removed. In determining that the “sole proximate cause” defense should have been dismissed as a matter of law, the majority focused on three potential causes other than the plaintiff’s negligence that contributed to the accident: a missing guard rail system that should have been installed around three sides of the open manhole, insufficient lighting, and the fact that the manhole cover was too heavy for plaintiff to have put it in place himself. The dissent focused on the fact that the accident allegedly occurred because plaintiff and his co-workers disregarded a supervisor’s instruction to cover the manhole before removing the lighting and the guardrails. The court’s decision here indicates the continuing difficulty in prevailing on the “sole proximate cause” defense.
While none of these Court of Appeals decisions alters the landscape in Scaffold Law litigation, they confirm the longstanding position of the Court of Appeals on the very limited scope of the “sole proximate cause” defense, and highlight the fact-intensive nature of the application of the Scaffold Law. If we were reading tea leaves from the Nicometi decision, we might view it as presaging a slight contraction of the scope of what is considered an “elevation-related” risk.