All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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 which shall be so constructed, placed and operated as to give proper protection to a person so employed.

This statute places the burden upon owners of construction projects (except owners of one and two family dwellings who do not direct or control the work) and general contractors to provide proper protection to workers working at an elevated height, such as a ladder.  The liability of the owner and the general contractor is independent of their actual fault. The liability is actually imposed by statute.

Common type of ladder accidents involve ladders that are not properly secured, and ladders that slip out at the bottom or ladders falling sideways off the structure, ladders falling backwards or even ladders shaking and unstable or unsecured which in turn causes a worker to lose balance and fall.  Given the significant safety issues with the use of ladders, the United States Department of Labor – OSHA has set up a comprehensive standard for use of ladders in the work space. A small number of accidents actually involve broken ladders.

Falls from standing ladders, extension ladders, A-Frame ladders all fall within the protections of Section 240(1) of the New York State Labor law.

In order to qualify for a possible 240(1) type of case, the worker must be engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

One must remember that when involved in a work related accident, the worker always has a workers’ compensation claim.  Often in ladder accidents, the employer is the one who is actively at fault. However, Section 11 of the New York State Workers’ Compensation Law prohibits a worker from suing an employer for negligence.  Therefore, as long as there was a general contractor that was not an employer, or an owner that is not an owner of a one or two family structure, there is a defendant that is responsible in a third party action under Section 240(1) of the New York State Labor Law in addition to your workers’ compensation claim. 

Another critical fact is that the injured workers’ negligence is not taken into account, unless it is determined that there was no violation of the statute and the workers’ negligence amounted to the sole cause of the accident.  If there is a violation of the statute, then by law, the worker cannot be found to be the sole cause of the accident. In short, in order to prove a violation of the statute is that the ladder in question failed to provide proper protection.

Our firm has successfully represented workers falling from various heights (no specific height requirement under law) from standing ladders, A-frame ladders, and extension ladders.

A large percentage of 240(1) ladder accident cases in New York result in motions made to the court to have the statute applied as a matter of law (Summary Judgment Motion).  Often the plaintiff can win their liability case as a matter of law before the judge, and then the case proceeds to a jury trial on damages only. For this reason, there are many cases which are the subject of appeal, and the body of case law (a small portion of which are discussed below) creates an ever changing landscape in the scope and protection of this statute.  For this reason there is no substitute for a law firm fully familiar with ladder accidents in New York City and New York State.

If you or someone you care for has been injured due to a fall from a ladder in the City of New York or State of New York, please contact our office without hesitation for a free no obligation consultation.  It is our privilege to be of service to New York Construction Tradesman.

Haimes v. New York Telephone Company, 46 N.Y.2d 132, 412 N.Y.S.2d 863 (1978) 

The highest Court in the State of New York – Court of Appeals – ruled that the decedent painter plaintiff who fell from a ladder that was not properly secured from slipping was the responsibility of the owner, even though it was the painter’s ladder.  This case stands for the proposition that even if it was the plaintiff who failed to secure his own ladder, given the violation of the Statute the owner is liable with no claim of comparative fault. Note that the cases have evolved towards a the presence of a sole proximate defense discussed below.

Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003)

The highest Court in the State of New York – Court of Appeals – has seemingly contradicted it previous finding in Haimes.  Plaintiff was the owner of a subcontracting company who had sued the defendant general contractor of a residential project.  The case involved an extension ladder that retracted. Plaintiff testified that he did not know why it retracted, and confirmed that it had been steady and free from defect before.  Plaintiff owned the ladder and plaintiff set up the ladder. The jury verdict was given the choice of either there was an inadequacy of the ladder, or whether the accident was solely attributed to the manner in which plaintiff used the ladder.  The jury found the plaintiff as the sole cause of the accident. The Court of Appeals did not disturb this finding. This case has been the established defense of “sole proximate cause” in 240(1) cases even though the statute itself precludes the claim of comparative fault.  In short, where there is a claim that the plaintiff is the sole cause of the accident, the plaintiff must prove a violation of the statute.

Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993)

The recalcitrant worker defense is another often attempted defense in defending New York ladder cases involving claims of violating Section 240(1).  In short, it is a claim where the worker has refused to use safety devices provided. The Court in this case rejected the defendant’s recalcitrant worker defense. In a construction site in New York, plaintiff fell from a ladder which had broken a week earlier and plaintiff had been instructed not to use it unless a co-worker was present to secure it.  Despite this, the plaintiff attempted to climb the ladder when his supervisor left the work area. The Court specifically held that an instruction to avoid using unsafe equipment or engaging in unsafe practices is not itself a “safety device.”

Jastrezebski v. North Shore School District, 223 A.D.2d 677, 637 (2nd Dept. 1996)

In this case the defendant was successful in their recalcitrant worker defense.  In this case the plaintiff was on ladder working with plywood, and the supervisor told him to get off the ladder as it was no good, and instructed the plaintiff to use scaffolding that was in place.  After the supervisor left, plaintiff once again used the ladder and fell. In this case the instruction was close in time to the accident itself, and proper safety advice was actually available.  

Miro v. Plaza Construction Corp., 38 A.D.3d 454, N.Y.S.2d 36 (1st Dept. 2007)

In this case the plaintiff slipped on a ladder due to the presence of foaming material on the rungs.  There was a concession on the part of the plaintiff that he could have requested another one, but did not.  The court held that the defendant should have been granted Summary Judgment dismissing the case, stating:

“A plaintiff who knowingly chooses to use a defective or inadequate equipment notwithstanding being aware that he or she could request or obtain proper equipment has no claim under Labor Law Section 240(1)decision not to request a new ladder, not any violation of Labor Law Section 240(1), was the sole proximate cause of his accident.”

Harris v. Rodriguez, 281 A.D.2d 158, 721 N.Y.S.2d 344 (1st Dept. 2001)

Plaintiff fell from a roof of a shed while trying to attach television cable to a box to an adjacent pole.  Plaintiff’s employer supplied him with a 24 foot ladder, which plaintiff testified that he wanted to use but could not due to the inability to transport it through the house or the alleyway.  The court concluded that the recalcitrant worker defense was not available as it requires a showing that the “injured worker’s deliberate refusal to use available and visible safety devices in place at the work station.”  

Robinson v. East Medical Center, LP, 6 N.Y.3d. 550, 814 N.Y.S.2d 589 (2006)

This case stands for the proposition that the plaintiff may be held to be the sole proximate cause to an accident if his fall was due to using too short a ladder (6 foot), and other ladders (8 foot) where on the job site, and plaintiff knew they were on the job site and plaintiff usually availed himself of the use of the other ladders on the job site.  In this case the plaintiff was using a wrench while standing on the top cap of a 6 foot ladder and his wrench slipped and he lost his balance and fell.  

Palacios v. Lake Carmel Fire Dept., Inc. 15 A.D.3d 461, 790 N.Y.2d 185 (2nd Dept. 2005)

This case involved a worker who fell from an unsecured ladder while working on a building.  The lower court granted the worker’s motion for summary judgment awarding him liability as a matter of law.  The facts set forth in the record established that the worker did use scaffolding that was available before while working on the same building and was allegedly told to use scaffolding rather than the ladder.  The Appellate Division reversed the lower court and allowed the case to proceed forward for a jury determination of the “recalcitrant worker defense” – deliberate refusal to use an available safety device that was onsite, which pursuant to defendants’ argument would have prevented the accident.

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