New York has some of the most stringent and complex laws in the country designed to protect workers in the construction trades. Pursuant to the New York statutory scheme, landowners and contractors bear responsibility to ensure construction workers are provided with all appropriate safety devices required to perform their jobs safely, and that the construction area remains free of any dangers posed to the worker. The scope of this responsibility to ensure workers’ safety, however, generally depends upon which provision of the New York Labor Law is applicable in a given case.
Unlike the well-known scaffold law (which imposes “absolute” liability on landowners and contractors to ensure that workers are not injured in a height-related accident), other provisions of the Labor Law are generally more equitable and often require that a landowner or contractor have actual “supervision and control” over the activities of a worker before being held responsible for a worker’s injury. New York courts, however, are continuing to erode the protection to innocent landowners and contractors for the conduct of those over whom they have not exercised any supervision or control by expanding the scope and application of the Labor Law.
On March 31, 2011, in St. Louis v. Town of North Elba, 2011 WL 1157707 (N.Y. Mar. 31, 2011) the Court of Appeals continued this trend by expanding the scope of Labor Law § 241(6). In St. Louis, the Court deemed it fitting to interpret the “purpose” and “objectives” of the Industrial Code in order to impose liability on an innocent landowner or contractor who had no supervision or control over the work being performed.
Labor Law § 241(6)
To appreciate the effect of the St. Louis decision, a brief overview of Labor Law § 241(6) is necessary. Section 241 has a number of subsections; however, the section most frequently utilized by the plaintiffs’ bar is subsection six. Labor Law § 241(6) provides that contractors and owners, except owners of one and two-family dwellings who do not direct or control the work, shall comply with the following requirements:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Although only two sentences long, courts have generally treated subsection six as a “hybrid” statute. The first sentence of subsection six reiterates the general common-law standard of care (“common law language”) and the second sentence contemplates the establishment of specific detailed rules through the Labor Commissioner’s rulemaking authority, i.e., the Industrial Code.
The Court of Appeal in St. Louis has now further convoluted (and weakened) the requirement that the underlying Industrial Code must mandate compliance with “specific” or “concrete” specifications in order to relieve an injured worker from having to show actual control or supervision by the landowner.The plaintiff in St. Louis was injured while working at the McKenzie-Intervale Olympic Jumping Complex in Lake Placid (“Olympic Complex”). The Town of North Elba owned the Olympic Complex. Plaintiff was assisting a work crew that was constructing a drainage pipeline by welding together sections of a snow-making pipe. In order to reach the underside of the pipe, the crew utilized a hydraulic-operated clamshell bucket attached to the bucket arm of a front-end loader to lift sections of the pipe approximately four feet above the ground and hold the pipe in place in the jaws of the clamshell. No chain, rope, or other safety device was utilized to prevent the pipe from falling in the event of machine malfunction.
In order to determine the scope of liability for a claim brought pursuant to Labor Law § 241(6), it is necessary to first determine which sentence applies. Courts treat the “common law language” of section 241(6) the same as a Labor Law § 200 negligence claim; therefore the duty under the common law language is delegable and in order to recover damages under the first sentence of subsection six, plaintiff has to show that the landowner had actual supervision or control over the injury-related work. If a worker can show that he or she was injured due to a violation of a specific Industrial Code provision, however, then the worker may not have to show actual control or supervision by the landowner or contractor in order to state a claim. Whether a claim alleging a violation of the Industrial Code is nondelegable or not depends on the specific Industrial Code underlying the claim.
Until the St. Louis decision, only if the underlying Industrial Code mandated compliance with “specific” or “concrete” specifications, the duty was nondelegable and plaintiff would not have to show actual control or supervision by the landowner. If the underlying Industrial Code merely established general safety standards, however, such as requiring an owner or contractor to “provide reasonable and adequate protection and safety,” then the courts analyzed the alleged violation as they would the first sentence “common law language” of section 241(6). This is the same standard applied to a Labor Law § 200 negligence claim — which, as noted above, would require plaintiff to show that the landowner exercised actual control or supervision over the injured worker.
St. Louis v. Town of North Elba
After two sections of the pipe were welded, plaintiff hit the welded seam with a hammer to remove excess metal. The jaws of the clamshell bucket opened and the pipe fell onto plaintiff and injured his legs and feet. Plaintiff commenced suit against, inter alia, the Town of North Elba for an alleged violation of the “Commissioner’s Rules” provision of Labor Law § 241 (6). Specifically, plaintiff alleged that Section 23-9.4(e) of the Industrial Code was violated.
Subpart 23-9 of the Code is entitled “Power Operated Equipment.” Section 23-9.1 specifies that “[t]he provisions of [subpart 23-9] shall apply to the power-operated heavy equipment or machinery used in construction, demolition and excavation operations.” The remaining sections of Subpart 23-9 cover specific kinds of power-operated heavy equipment or machinery, but do not mention “loaders” or “front-end loaders.” Section 23-9.4, the section alleged by plaintiff to have been violated, requires that when “power shovels” and “backhoes” are used for material handling, then:
(e) Attachment of load.
(1) Any load handled by such equipment shall be suspended from the bucket or bucket arm by means of wire rope having a safety factor of four.
(2) Such wire rope shall be connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load.
The Town of North Elba moved to dismiss the lawsuit on the basis that section 23-9.4 of the Industrial Code does not apply to front-end loaders because it only mentions “power shovels and backhoes.” Although the Court implicitly acknowledged that front-end loaders were not included in the text of section 23-9.4, the Court determined that front-end loaders should be included within the scope of the section because it “was clearly drafted to reduce the threat posed by heavy materials falling from buckets . . . .” and that “the same danger that exists for a worker using a power shovel or backhoe with an unsecured load exists for a worker using a front-end loader with an unsecured load.” To further buttress its conclusion that front-end loaders should be included within the scope of section 23-9.4, the Court also noted that material hoisting with a front-end loader “is associated in the trade with the same known risks as other power-operated machinery used in this manner.”
Rather than merely looking at the specific text of the Industrial Code provision to determine if it requires compliance with a “specific” or “concrete” mandate, the Court has now introduced further factors into the equation, such as the intent behind the specific Industrial Code and the comparative assumed dangers of the activity causing the injury and the activity delineated in the Code. As noted by the dissent, however, by introducing into the equation the general purpose behind the specific Code provision and a comparative analysis of the dangers of the activity causing the injury, an innocent landowner or contractor cannot read the Code and obtain clear notice of what the law requires. It also invites further litigation over what protection, although not stated in the Industrial Code, should nevertheless be read into each of the provisions. We should expect a great deal of future litigation over what the Labor Commissioner “meant” to include in the Industrial Code.