On July 5, 2017, a 44-year old union plumber, fell from an 6-foot A-frame ladder while installing a compressor for a water fountain in the ceiling of a bathroom at a construction site in New York, tearing his left bicep tendon. Plaintiff sued the construction manager, F.J. Sciame Construction, alleging that he was not provided with a safe place to work as required by the New York State Labor Law.
Alkes specifically alleged that his injuries were caused when he fell off the 6-foot ladder, which is an "elevation-related hazard" defined by New York Labor Law §240(1) requiring appropriate safety devices be provided by the construction manager. Alkes also alleged a violation of New York Labor Law §241(6), claiming a wet and slippery floor also caused his fall and because the construction site was not properly safeguarded in a way to provide adequate protection to Alkes.
New York State Labor Law §240(1), in general, requires all "contractors and owners and their agents...[to] furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices...to give proper protection to" the persons engaged in an elevation-related task.
New York State Labor Law §241(6), in general, requires owners and contractors to "'provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations" created by the Commissioner of the Department of Labor (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]).
Although both provisions seem similar, there is a very significant difference, which ultimately led to the Court in Alkes v F.J. Construction Co., Inc., Supreme Court, New York County Index No.: 159325/2017, granting Summary Judgment to plaintiff on his claim brought under Labor Law §240(1) and dismissing his claim brought under Labor Law §240(1).
Labor Law §240(1) requires that owners and contractors provide an individual who is engaged in work at an elevation "proper protection" and the failure to do so will result in liability against the owners and contractors (as long as there is no evidence that the individual 100% caused his or her own injury). Labor Law §241(6), in contrast, requires proof that the defendant violated an Industrial Code regulation "that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles" (see St. Louis v Town of N. Elba, 16 NY3d 411 [2011]). In a §241(6) case, the plaintiff must show 1) the Commissioner of the Department of Labor created a safety code specific to what the plaintiff was doing when he or she was injured; 2) that it was because of the defendant's failure to follow the safety code that caused plaintiff's injuries; and 3) plaintiff's partial or total fault ("culpable conduct") may reduce any finding of fault against the defendant.
In a §240(1) case, the plaintiff need only show 1) he or she was engaged in a protected activity that involved a height (elevation); 2) his or her fall caused injuries; and 3) only if the plaintiff is 100% at fault for falling from the height (referred to as "sole proximate cause") it does not matter if the plaintiff is partially or even 99% at fault, plaintiff's conduct will not reduce any finding of fault against the defendant.
It makes sense why an experienced attorney would seek liability under Labor Law §240(1) primarily, and only seek liability under Labor Law §241(6) and the Common Law, which is codified in Labor Law §200, as secondary thoughts.
Here, defense counsel argued that plaintiff was either the sole proximate cause of the accident or was in some way partially at fault, and therefore contributorily negligent. Ultimately, the Court granted Summary Judgment to plaintiff on the issue of liability under Labor Law §240(1) and dismissed the claims brought pursuant to Labor Law §241(6).
Ultimately the case was presented to a New York County Jury on the issue of damages only, because by granting Summary Judgment to plaintiff on his Labor Law §240(1) claim the Court was stating there were no issues and defendant was 100% responsible. On the issue of damages, plaintiff underwent two surgeries and physical therapy but claimed his left arm did not sufficiently respond to treatment after the second surgery. Due to the injuries and subsequent treatment and surgeries, the 44 year old plaintiff was never able to return to his job as a union plumber and eventually could only find work as a delivery driver.
The defense argued that plaintiff made a full recovery from his initial injuries, and his re-ruptured bicep tendon was unrelated to the ladder fall. They also claimed that his weight training predisposed him to tendon injuries and that he sustained no wage loss as he was physically able to perform his duties as a plumber.
Following testimony by both plaintiff's medical experts and defendant's medical experts, before the jury could render a verdict, the case settled for an amount that included past and future lost earnings, health insurance replacement costs and non-economic damages for pain and suffering.
