New York's controversial "scaffolding law" (New York Labor Law Sections 240 and 241) has a reputation for soaking contractors for damages no matter how careful they are or how trivial the accident. The truth, however, is somewhat different. A New York appellate court ruled Tuesday that a project owner was not liable under the Labor Law for an injury resulting from a transformer falling two feet.
Richard Makarius suffered a head injury while assisting in repair work at a post office building owned by the Port Authority of New York and New Jersey. At the time of the injury, he was holding a ladder on the ground for a co-worker who was attempting to fix a water pipe that had broken in an electrical closet. A transformer that had been fastened to the wall six or seven feet off the ground fell on him. Makarius sued under Sect. 240, claiming that the Port Authority failed to take required safety precautions. It was true that the wall holding the transformer had been repeatedly exposed to water leaking from the pipes, but the authority had the leaks repaired and the wall dried weeks earlier.
The trial court ruled in Makarius's favor, but the Appellate Division's First Department reversed the decision. Writing an opinion concurring with the majority, Justice Nelson S. RomÁn noted that the distance between the injured man's head and the transformer was less than two feet. In the judge's opinion, there was "no appreciable height differential" between the transformer and Makarius's head. He also stated that the record showed no evidence that the transformer fell because of the absence of the safety devices required by Sect. 240. He concluded:
Since the hazards that Labor Law § 240(1) is intended to prevent are those that by virtue of height differentials, e.g., work being performed at elevations or loads being hoisted or positioned above a worker, relate to the effects of gravity...there can be no liability under the statute where the work is not being performed at an elevated level...or where there is no appreciable height differential between a worker and the falling object that strikes him or her...
Justice Karla Moskowitz, in a minority dissenting opinion, argued that the distance the transformer fell is irrelevant. Rather, she contended that the bolts holding the transformer to the wall were in essence "safety devices" required by Sect. 240 and that their failure caused the injury:
What is important is whether the injury was a direct consequence of defendants' failure to provide and place the necessary safety devices the statute mandates under the circumstances...Here, anchor bolts secured the transformer. It is undisputed that these bolts supporting the transformer did not hold, perhaps due to the water-damaged wall, and that the failure of the bolts was the proximate cause of the accident. Accordingly, the accident fell within the parameters of Labor Law § 240(1) because a falling object struck plaintiff that a safety device had not adequately secured...
It will be interesting to see if the plaintiff appeals this ruling to the Court of Appeals, New York's highest court. The scaffolding law continues to be the source of much litigation in this state, and one that has a significant effect on liability insurance premiums. The final outcome of this case may not change the contractors liability insurance market here in a major way, but it will have an effect on the handling of future claims. For that reason alone, stay tuned.