Hi all. Good afternoon. Or morning, depending on where you are. My name is Michele Newsome and together with my partners, David LoRe and Russ McBrearty. We will spend the next hour or so providing you with an overview of New York labor law 240 typically referred to as scaffold law and generally involving what we refer to as a falling worker or a falling object. So for those of you who may not be familiar with our firm, please allow me to give you just a brief introduction. We are Milber Makris Plousadis and Seiden, a full service litigation defense firm with offices in New York, New Jersey, Connecticut, Pennsylvania and Florida. We handle all types of legal defense matters, including, of course, labor law premises, liability, auto liability, municipal liability, nursing home construction defects, malpractice claims, insurance coverage and coverage, litigation and beyond. I'm a partner here at Millburn Mattress, where I've been practicing insurance defense for the last nine years. I focus my practice on premises liability, labor law and auto case. And now you'll have a chance to meet Russ and Dave. Hi. Good afternoon or good morning, everyone. My name is David Lowery. I'm a partner with Wilbur Matters. Thank you, Michel, And welcome, everyone. Thank you for joining us today. Uh, I've been in the insurance defense world for, I think about 17 or 18 years now. And for the past 15 or so, my practice has focused primarily on defending New York labor law claims, including owners, property owners, commercial owners, residential owners and construction contractors of all tiers. And that's that's what I do on a daily basis. Uh, yeah, just like Dave. And I've spent my. Entire career doing labor law, defense work and. But that's that's what we do. So we have a we have slides for you today. The focus is obviously going to be on New York labor law 240. Okay. Um, basic. Basically, we're here today because construction sites can be very unsafe places. Um, you know, you, you walk through a city or you walk through wherever you are and you see construction all over the place. And everywhere in those construction sites are hazards. And New York has developed over the years a big statutory scheme to protect the workers at those sites from the hazards that arise because of the dangers that are inherent in construction work. Um, and typically in New York, the four well, the three big laws that govern safety at construction sites are under the umbrella of the New York State Labor law. And there are three sections in particular we're going to discuss one today. Those are sections 200. You see them on the screen. Section 240, subsection one and section 241, subsection six. Those are the three major laws that govern safety regulations at construction sites. And while all come into play in terms of litigation, we're going to focus on 240 today. Now, just to give you a little background, these laws were basically developed in the late 1800s by the New York state legislature. As you know, New York was being developed and the city was having skyscrapers built. Um, they were modified over the years, the major amendments to these laws which brought them into their current form took place in the 1960s. So the laws as we know them today have really been in place since the late 60s. But over the past, I would say 20 to 25 years or so, really since 1995 or so, the court, the appellate courts of New York have really gotten involved and litigation has really exploded in terms of these statutes and have really promulgated rules and and guidelines, shall we say, in the case law that has refined these laws and provided the the framework for how we go about analyzing these laws and the claims that arise under them. Now, at its very basic, these laws are in place because, as I mentioned a few moments ago, construction sites can be dangerous places. Accidents happen. Uh, workers of all levels can get hurt at the sites. And New York being a very litigious state. Lawsuits result from those accidents. And there are personal injury firms here in New York, as there are around the country, that specialize in protecting, bringing lawsuits that affect construction workers and actually have very strong relationships with construction companies and with labor unions. And, you know, the trade unions, um, where they are known as the go to firms to bring these types of claims. Now, the type of accidents that happen at construction sites are basically unlimited and everything from trip and falls to falling from a skyscraper, you name it, everything that could possibly be possibly be imagined. The one we're going to focus in on today is the one in the Middle labor law 240 sub one. As Michelle noted a few moments ago, also known colloquially colloquially colloquially as the New York Scaffold law. This is the big one in New York. This is the one that that gives defense attorneys and claims representatives headaches and keeps them up at night and and really dominates the field because it's so expansive. Um, it as we'll see in the next slide, I think we're up to that It it, it basically applies any time gravity is involved in the accident. Now the the fun nickname of this course I think he's seeing some of the materials was gravity hurts and it's true one way or the other gravity is involved in basically everything we do in life and certainly everything that goes on in the construction site. Um, the law has developed in a way that it basically recognizes two types of accidents and in the design and purpose of the law is to protect workers from at its very basic core, two types of scenarios. One where where the worker falls because the worker is working or operating at at an elevation differential. In other words, at a height, you know, on a scaffold on a ladder. And, you know, through the force of gravity, obviously, there's going to be dangers inherent in that. You know, the nature of the job could mean the worker could lose his balance and fall or something of that nature and obviously be injured. The other category of cases that has come to exist under this law that has come to dominate the field involves falling objects. And by objects we can mean something as small as a hammer or something as large as a three ton air conditioning unit on the roof of a skyscraper. Everything in between as well. So the case law has identified two different types of scenarios. We call them falling worker scenario and the falling object. Scenario that could trigger a claim. So basically, it's important. It's important to understand the relationships of the parties at a site. The typical relationships of the parties at a construction site at the top of the at the top of the pyramid, you have the property owner. Okay. There Obviously, we normally deal with commercial owners, but of course, there's also going to be residential owners. The owner of the property is the one that hires the construction folks, the contractors who come in and actually coordinate, plan and perform the work. Typically, under the owner, you have what we call the general contractor. I'm sure these are terms you're familiar with. There's some nuances within the field that I'm that we're dealing with that will be fleshed out a little bit. And then underneath the general contractor at a typical site, you'll have your subcontractors, you know, the various trades, the electricians, the carpenters, the Hvac trade, giving you the very basics of the basic framework of the relationships that play, that are at play at a typical construction site, at least in New York. Now, there's going to be other parties involved. Sometimes you'll have something, what we call a construction manager. Sometimes you'll have a safety company that's hired to to consult with the owner and the general contractor. But basically speaking, these are the this is the framework of the relationships of the parties at a construction site. You want to add anything to? Sure. Just just looking at this slide that we have here, I'd like to kind of start with, you know, is this a labor law claim when it comes in? Because sometimes a claim may look like a labor law claim. There may be labor law allegations within a complaint, but at the end of the day, it might not be a labor law claim. What what we look at first here, as I said in the slide, is that is the plaintiff, an employee. And that's put in quotes because employee is a defined term under the labor law. And as you can see, it's a mechanical workingman or a laborer working for another for hire or and permitted and suffered to work. I'll give a for instance here I had a case in which my client was a contractor working at a hotel, and the hotel had had its own workers, basically a maintenance worker at the hotel who was helping bring garbage down from upper floors and slipped on some some or alleged to have slipped on some sheetrock in a stairwell. And he made allegations of labor law that it was a labor law plaintiff. And we were able to show at the end of the day that, no, he was a mere maintenance worker for the hotel. He wasn't involved in the actual construction going on. Therefore, he didn't fall under the employee, even though he was doing some work which might have been related to the to the construction. Yeah. Not not only does the worker himself have to be what's considered a protected worker or in the class of workers that are protected by the statute, you know, in other words, the people who were actually working at the construction site and performing construction, but they have to be engaged in what the law defines as a protected activity. And typically that means something directly or indirectly related to the construction work. At issue, it makes a big difference as to whether or not it's construction work taking place versus, as Russ was alluding to, perhaps routine maintenance and things of that nature. Changing a light. You might have to be on a ladder to change a light bulb. But the courts have considered that in most cases to be routine maintenance. That kind of test would not be protected under the, under labor law 240, as opposed to folks who are involved in the actual construction work taking place at a site. Yes. And maintenance can be expansive. So it needs to it needs to be defined what maintenance is and what maintenance isn't. So, for example, think changing the belt on an Hvac unit would be maintenance, but changing the motor might not be. That might end up being, you know, alteration of the unit. So it becomes very fact specific. Yeah. In fact, in fact, one thing, one overarching theme to this entire presentation and as you review the hundreds and hundreds of cases that have come down is that we can say we can sit here and tell you all these rules and tell you all these guidelines, but but you'll come to realize as you review the cases and as you review your claims as they come in, that it's very difficult to to sometimes determine whether or not something is going to be protected by labor law 240 or something falls under the protection of that law because it's very factual, specific the I don't know any other law, certainly in the construction world, that is more fact specific and more fact dependent than labor law 240 or a court will literally have to analyze each set of facts as they get it before they make a determination as to whether or not, for example, it's a protected employee as opposed to someone who is not going to get the benefits of the law or protected activity. And to further that, sometimes for us, it starts. That we get the case in and we see it one way, but as Discovery goes on, you know, it'll it'll change 3 or 4 times on how we analyze the the level of fitting in or whether it's true for a case or whether we have good defenses against it or not at all. Change in depositions and in discovery. Mean generally speaking when the issue is gray, when it's not a traditional construction project, the more intensive the labor, the more intensive the alteration to the building or the structure that's that's being worked on, that tends to bring it more into the protections of the law than perhaps something like use the very minimal example of changing a light bulb that seems obvious that's not going to be protected work. But you know, sometimes it really does get gray is installing a clock on a wall protected is installing a flat screen TV in your doctor's waiting room protected? Well, maybe if the TV was just being mounted on the wall, perhaps not. But if the workers have to actually chisel out the wall or drill into the wall for new electrical conduit, that that's the kind of stuff that can take it into the purview of the statutes, protections and cause a court to deem that plaintiff that injured claimant, shall we say, you know, entitled to the protections of the law. Yeah. And you guys are exactly right that everything is so fact specific. You look at something in this statute like cleaning, which seems so basic, right? So it's been held outside. Commercial window washing does fall within the ambit of cleaning. But what about something like dusting or something like vacuuming? Do those fall within cleaning? Well, then of course, you have to look at the additional facts. What was the nature of the rest of the project? Was it routine? Was it a routine dusting or not? Was it related or unrelated to any other ongoing construction? So no one fact is going to help determine the outcome of the case. It's you got to look at every single fact and every single case is different. All right. So we have this overarching law, labor law, 240. And it really the legislature has decided and the courts have confirmed that there are really going to be three classes of defendant targets that the law is going to apply to. And as we'll see in a moment, we'll have some very harsh consequences. For now, the underlying rationale as to why the folks you're seeing on the screen and what I'm about to describe are those targets is because back back in the day, the New York state legislature decided sometimes, sometimes true, sometimes not true that these three classes of parties were potential defendants. Are those think that in the parlance of the case law, in the best position to ensure safety standards are being met at construction sites. So talked a moment ago about the owners. The owners of the the owners of the property are the ones who hire the construction contractors and have the overall plan for the development or whatever project is going on. Frequently, those owners are not construction entities. They're not construction folks. That's why they hire companies to handle that. And you would think that because of that, the they would be off the hook in terms of what if there's an accident that's outside of their control? You'd be wrong. The legislature has decided that owners and general contractors and a third category we'll get to in a second are subject to strict liability under labor law 240. That means in practice that if a worker falls from a height and gets hurt or an object falls from above, or we'll talk about in a few moments from perhaps another position and in some way, shape or form causes injury to that worker as a result of gravity, which said at the beginning, even if an owner has absolutely no involvement in the project whatsoever, that owner is going to be found assuming the elements are prudent of the claim, 100% strictly liable for the injury. The same is true for the general contractor. And a third category we'll get to in a second. But owners and general contractors are the two biggies, the two big defendants. And we see them. There are clients, there are insureds every single day. Your insureds are clients. They're the ones facing strict liability. Here's the key Regardless of their actual active involvement in whatever work it was that was taking place just by nature of their position owner and general contractor. They are on the hook for strict liability if there's an accident that's that triggers labor law 240. And of course, the elements are proven by the plaintiff. Anything there? Yeah, just. And owners are expansive here, right? So a lessee is an owner. An owner of the building is an owner. In some strange circumstances, especially in New York City, there's ground lessees who own the space underneath the building. They're owners of the premises. They are two owners under label. So you could have multiple, quote unquote owners who might be on the hook, which puts several policies on the hook. At the end of the day. It's you'll see it's a very harsh policy. And if there's one practical tip I can give before getting into the rest of it is that unfortunately, the mentality of the defense lawyer and perhaps the claims representative in handling a new claim that might trigger the statute is unfortunately to be very much of the expectation that it will likely be a liability case or at the very least, there's going to be issues of fact that a court will decide. A jury has to figure out At the end of the day, very rarely are these cases subject to summary dismissals, like like on a motion for summary judgment. And we just know going in, we know that a lot of cases we get are going to be home runs for the other side and we're going to be in defensive mode and in terms of damages. But as we'll get into, there are some defenses that are liability aspects. But I think it's important to keep in mind that it's a very harsh law and very harsh on defendants and construction contractors and property owners. And that, you know, generally speaking. The injured worker is going to have the leverage during the lawsuit. And as set forth here, the only there is one exception to two owners being held liable here, and that's the home owners exception, as we call it. And that's where owners wanted to Family dwellings who contract for the work but do not are uninvolved with direction and control of it, can have an exception and will not be liable under the labor law. Now, it seems simple just to say that, okay, I have a homeowner and they have a one and two family home. Yes, we have the we have the exception. We know we're going to win that case. Um, not always. So as one case that I had which came up interesting in plaintiff's counsel, did some very good investigations before the case started. Uh, my my client owned a one and two family home in Brooklyn, and they were fixing the joists underneath the floor. And plaintiff, while walking on those joists, one of them was rotted and cracked and fell through to the basement and was injured very badly. And the investigator got in somehow got into one of the apartments of of our client before the lawsuit was started, determined that there was a third illegal apartment within the building. Um, so the litigation really surrounded on whether I could use the exception because it was potential that there was a there was a being used as a three family home. Um, we got through summary judgment motions on it and settled the case. But I think at the end of the day, the court may have found at least that there would be a question of fact of whether the exception would apply there. Um, another issue that comes up with the homeowners exception also occurs when the a client or insured is purchasing a home and it's a more than a one and two family. It's a 3 or 4 family, but they plan on converting it to a one and two family. So at the time of the purchase and the time of the construction, the certificate of occupancy may say more than a one and two family. But but the court will look at the intent of the defendant at the time of the accident. So if, for example, your the client or the insured is purchasing a home, making it into a one family home, but it's currently a three family home with the intention to live within that. The court uses what's called the site and purpose test and will say, okay, you're entitled to that one and two family home exception because of the purpose of the construction was to convert it into one two family home. Um, again, that is, you know, that is very litigious. There's issues with whether part of the home is being used for a commercial venture or not. These are all issues, like we say, with every one of these cases where it's going to be a case by case basis. And, you know, at first you might think it's clean, that you have a good exception, and then it gets a bit it gets a bit messy. Well, a similar example I have, I represent a client. He was converting a three family condo into a two family condo. And he did not trust me. This guy was not directing or controlling the work. But you think, okay, great. It's a two family dwelling. He wasn't directing or controlling the work. Well, this is a slam dunk entitlement to the exemption. But his intention after the conversion was then to resell those condos for commercial benefit. So he will not be entitled to the benefit of the exemption because if the dwelling is used purely or exclusively for commercial purposes, it then falls back within the labour law. Real life tip. If anyone owns a 1 or 2 family home, just just make sure you don't supervise the director, control the GCS or contractors that you hire at your house. You'll be okay. Um. The the one caveat to what we were saying was Russ, Russ had mentioned that even less even lessees, meaning tenants can be on the hook for labor law 240. They're considered owners, even though they're not technically the owners. And the fact pattern we frequently see tenants involved is picture a commercial building. You have the owner of the commercial building, they have a tenant that wants to do an office fitout for their office suite. It's the tenant who goes out and hires the general contractor and perhaps some of the trades do the work and do the fit out and renovation of their own office suite. The law considers them an owner in the ownership general contractor chain for the purposes of liability under under labor law 240. So there are a couple of categories other than just being strictly an owner where you could be on the hook. The only exception I know to an owner being off the hook into other than the 1 or 2 family home exception, the only commercial exception I know is when there's cable television. In being installed and the owner has nothing to do with it in the owner's commercial building. The owner the courts have said that because of the requirements of New York's other laws, some laws involving mandatory cable installation stuff that's not related to construction, the owner has no choice but to allow workers to come in and do that work where, you know, they may get hurt. They have to stand on ladders, etcetera. But that's truly the only the only other exception I know of other than the 1 or 2 families. So bottom line is, yes, it's unfair and owner can have nothing to do with the construction, but it can still be on the hook just by virtue of the fact that owns the building for Labor law. 240. Now, last thing I'll say on this, the owner can protect itself, of course, by having the right contracts in place with the right indemnity provisions and the right risk transfer provisions. But that's for another day. So that's just the basics on owners. Same thing applies to general contractors. They're the ones much more in position to control the work. They're the ones that typically hire the subcontractors out of site. The the legislature and the courts have also deemed labor law 240 to apply to general contractors. Now, there's another category of management companies at a construction site known as the construction manager, Rusty. Sure. Yeah. Construction managers fill a different role than a general contractor. General contractors are usually hired to to perform some kind of work, and they usually go out and get all the subcontractors and we'll monitor and supervise all of them. General construction managers maybe have different purposes. They may be just there to pay the bills. They may be there to just coordinate all the different trades. There may be a situation where the construction manager and and a general contractor. The issue that arises with construction managers is whether they're able to be determined to be, although they won't be found to be general contractors, they may be determined to be an agent of the owner. And then as that agent, they may be vicariously liable for the owner if the authority to supervise or control the plaintiff's work. Now, there's a court of appeals case called Walls V Turner, which kind of sets off sets up what what factors are involved for a construction manager and any other contractor in that sense, whether they're going to be determined to be an agent of the owner. And there's four factors that that are generally set forth. And what they courts looked at would be the contract terms between the owner and the the construction manager of whether there's an agency created within that mean it may be simple as the contract saying, you know construction manager is agent or owner. Um they will also look at whether there's a general contractor on the job and what that general contractor is, uh, purpose is there and what, what role they fill. And of course as discussed here already is that whether they have the authority to direct supervisory control, the work that is being performed at the time of the injury and then whether they can also whether they can cease operations of contractors if they see unsafe work. So those are some of the factors, among others, that the courts look at. But Walls v Turner is really the case that set forth the the factors for determining whether the construction manager is an agent of the employer. Now, Russ mentioned the word agents quite a bit. That was the third category of. Targeted defendants that labor law 240 applies to. Um and it's it's the it's the category that's the most gray and recently at the very least subject to the most heated litigation in terms of defining who was an agent, because it's a tremendous it's a tremendous decision the court has to make. If a court defines a particular construction company or a person as an agent for the purposes of labor law 240, it opens up a tremendous can of worms in terms of their their strict liability and and their at the end of the day, their liability to the injured worker. Um, generally speaking, the core concept for who is an agent and thus who is also on the hook for Labor law 240 is the concept of authority over the work that produced the injury Now, and I'll let Michelle flesh this out a little bit in a second. Basically it comes down to, um, did the company that might be considered an agent, did the construction contractor that might be considered an agent have control over one of two things. Either the work, the injured worker, him or herself that was performing the work where they got hurt or some other work that led to the conditions that arguably might have created the accident or caused injury to the worker. And this has become a real heated thing in New York, where where it's still up in the air in terms of New York's highest court, the court of appeals. Um. Now, Michelle, you have anything to add on that? Yeah. So the things are going to want to look at in a lot of things are going to come down to direction and control. And not only did the entity have the authority to do well, it doesn't matter if they actually exercised the control, right. What matters is if they had the authority to do it. So always going to take a look at the contract and read the terms of it to see where they responsible to direct and supervise the jobsite, were they responsible for means and methods. And then during testimony, during depositions, you're going to want to ask if they provided any equipment, tools, materials. And I always go through my plaintiff's deposition fairly methodically, at least until you get to the nitty gritty. But what equipment did you need to perform your job? What tools did you need? What materials did you need? Who provided those to you? Who gave you instructions, Who gave you directions? Was it anybody other than your foreman? Did the GC give you any instructions? And so labels aren't determinative, but rather what the role and the responsibility of each entity on the job site is. And so to go back just to talk about construction managers for a minute, a true construction manager will fairly be an administrative position. So if they're just administrative and they don't have any responsibility for the actual work, but rather, like Russ said, you know, submitting requests for proposal or getting the bills organized or getting, you know, contract contacting vendors to set up when the materials are going to be delivered to the job site, they might not be considered a labor law defendant. And what I've been seeing a lot recently is my owner clients have been entering into contracts with what is essentially the GC. So with the entity that is hiring the subcontractors, really directing and controlling the work, supervising, running meetings, but the contract is labeled actually as a construction manager contract. So now these of course, the attorneys for these entities are coming in. They're saying, well, we're we're a construction manager. True. We're not a true labor law defendant. And that's again, you get to depositions and you look at the contracts and I say, well, I have all of these sub contracts here and your client, who is really the GC and not a true CCM, hired all the subs, directed all the subs, held the meetings every morning. Look, I have sign in sheets right here that shows that your client was actually the GC running the jobsite, giving the CFC meetings every morning. So you're going to want to look at not the label, but rather what their actual role was and what they were contracted to do. And just as a quick practice, practical practice tip and claims analysis tip. New claim comes in and your insured or our new client happens to be a subcontractor, let's say an electrician who's not the owner or the GC. In the old days, it was pretty easy to say, okay, they're not going to be subject to labor law 240. We had nothing to do with the work that Mr. Injured Worker was performing when he fell from the ladder or when a when a hammer fell on him. Unfortunately, the recently the law has been expanding and the courts in New York are going in a very expansive direction. And they're they're really looking at whether or not that seemingly unrelated subcontractor had anything to do with the conditions that may have resulted in the latter slipping or wobbling or the hammer falling from above, etcetera. And whereas once we could just say, oh, maybe we can just be at worst it'll be a little bit of apportionment of negligence for us maybe. And now we're seeing situations where we, as an unrelated subcontractor, not the owner, not the GC, not the employer, we could be on the hook as an agent for Labor Law 240. And it's something to really keep in mind because if that's the case, you could be on the hook for 100% of the damages. And as an example of that, I just had a case recently where I represented the new electrical subcontractor and plaintiff was a carpenter who was walking on a floor and slipped and fell or stepped on a piece of conduit pipe, which was admittedly used by the electricians. However, the our contractor hadn't worked and it was all documented within, you know, within the construction records that we hadn't worked in that on that floor in that area using conduit pipe within four months of the accident. And it was also determined that the conduit pipe was bent and it was likely debris that should have been cleared by the laborers at the site. However, as Dave said, the court came down, at least the the trial court came down and said, well, because that was your piece of equipment at some point or your materials, you are responsible as an agent because you were you had authority over those materials that produced that helped produce the injury. I frankly think that's wrong. But we didn't get the appellate division on that one because the case settled. But that's that is and as Dave was saying before, that is something now that we see as as becoming the next big issue that's going to that the appellate division and the court of appeals is going to have to deal with and to whether to expand and broaden what we've previously thought to be what agency is, whether it's being more specifically involved in an injury producing work authority direction control over what plaintiff's doing into this broader was your was your materials or were you involved in the area where plaintiff's accident occurred? Did you have any kind of control over what was happening there, which could bring multiple trades into into being considered agents? Which brings up one of my favorite terms I've been using. I call it a construction salad. Plaintiff's lawyers are taking advantage of this expanding law and they're they're suing all the trades at the site because they think if they can get their witness or their their client or other construction construction witnesses to testify that one of the causes of the accident was some big pile of debris with, let's say, an electrical conduit, a piece of duct work, sawdust shavings. He can get he can at least get issues of fact as to all those trades, as to whether they were involved and taking advantage of this expanding law. He can try and keep them and their insurance policies in the case, past the summary judgment phase. And in light of the lack of appetite among certain folks for trial, he thinks, you know, the savvy plaintiff's lawyer will think there'll be more people at the table when the case is ultimately negotiated. The next series of slides, I think we should keep moving. The next series of slides really gets into the nitty gritty of the text of the statute itself and the elements that the courts have determined are necessary to prove. So I'm not going to read it because it's on the screen. Basically, we've talked about who labor law 240 protects the workers versus folks who might not be doing construction work. We've talked about the defendants. It targets the owners, the GSEs, the agents. Now we're going to talk about the requirements under the law. Essentially, the law at its core requires those owners, those GSEs, those agents, and they always end up pointing each other, pointing at each other to provide adequate safety devices to protect workers from gravity related hazards. As said at the beginning, that stuff falling, that's that's workers falling from elevated surfaces. So the devices that we're talking about are the things you see every day at construction sites, most basically ladders, obviously scaffolds. That's why we call it the scaffold law. All sorts of other stuff too. Harnesses, lanyards, things, things I can't even define because I think they're all fashion. Some terms like blocks and chocks and braces and pulleys. But basically everything you can think of under the sun that somehow can prevent accidents where the mechanism of the accident are the things that I just mentioned. Now, the first thing is very easy to conceptualize. We have a falling worker, right? Worker falls 12ft off a scaffold. On work referrals. He'd often there's cases where they even fell six inches they can be covered there no get a little crazy but there's a lot of stuff that's gray. For example if a worker is I have a case where a worker is walking across one of those sidewalk bridges you see everywhere in Manhattan that protect the pedestrians on the sidewalk below from work that's going on way up above. He stepped on a rotten plank that had been out for two years. It had worn down from the rain and the snow and the ice and the cold for two years and the plank rotted and cracked under his foot. He went into the he went into the resulting hole up to his knee and did my research. I said, this can't be 240. And it's a 240 case, most likely because somehow some way a scaffold, a sidewalk bridge being considered a scaffold broker failed and gravity caused this worker's leg to go into the to the resulting hole. And, you know, he's claiming all sorts of stuff. Now, do I believe his claims? Of course not. But but the law is going to give him credit or at least view him favorably when moved for summary judgment. And I've already written it up. I said we have to prepare under the current case law. As ridiculous as it sounds, that this is a labor law 240 case, that's just one example, but it does get very gray. We'll get into the falling object in a moment. Do you want anything to the fallen worker? Not at the moment. I just want to go back just really quickly just to say and this is the worst part about labor law 240 and this is this is where it gets The issue is that once a determination is found that labor law 240 has in fact been triggered, absolute liability is absolute. There's no use of comparative negligence. Of course, there is an exception that there is a defense proximate cause defense, which we'll talk about in a bit. But here, if plaintiff is 99% of fault and you were and your client, your insured or our client is 1% of the fault, plaintiff can get 100% recovery. And it's and this is all as Dave was saying before, this isn't in the statute itself. This is all court and judicial related rules where they interpreted the statute to to show absolute liability, among other things. It's ludicrous. It's it's plaintiff could literally be doing the most absurd things possible. But but as long as he's not 100, he or she is not 100% of the fault he'll win. Yeah, it's the other elements are proven. Right and and Dave just went over what's shown on this slide is that we have to determine the two things whether 240 is is actually triggered here and it's whether it's gravity related risk that caused the accident and whether there was a lack of the enumerated devices under the statute. So the second major category is the falling object. And again, a lot of easy to conceptualize. You have things workers work on different levels. You know, construction work takes place on different stories and floors ongoing. And it all has to be safely coordinated and protected against. But accidents happen. Bricks fall from scaffolding above, paint buckets get kicked over, things fall. They strike workers below. That's a 240 case because the plaintiff will argue that the right netting was not in place, the right barricades, the right whatever were not in place. Holes existed when they shouldn't have existed, etcetera. But again, there's going to be gray things like there is and the law generally comes keep this in mind. The law generally comes down on the side of the workers. And the most extreme examples are two that keep coming up in various forms. These are two major cases from the New York Court of Appeals, the highest court in the past 15 years. One case is called a runner and runner. The workers were trying to move an £800 coil of electrical conduit down four steps and to control the descent. They rigged the system where they they had a rope and an iron bar. And they just basically tried to come up with some way to control the descent of this electrical conduit coil. They lost control of it. And plaintiff, who guess was grabbing the rope, somehow got hurtled forward and he smashed his hand against the iron bar that was serving as a makeshift brace and brought a 240 claim. And the courts looked at it. The the defendants argued nothing fell on this man. He didn't fall and nothing fell on him. And the court said, too bad. The the key inquiry is the fact that you had this enormous, heavy, bulky object that had to be moved four steps down to another landing, and they determined that because gravity was involved. And the man got hurt. That 240 was triggered under a falling object theory, even though it didn't actually strike him. The second major case that came down in the past 20 years, 15 years is something called Wilensky again, New York Court of Appeals. It's a case where the workers were demolishing the inside of a building to two plumbing pipes were two big plumbing pipes were standing vertically and weren't part of the demolition they were going to remain. And due to some faulty workmanship, the workers managed to knock those pipes over. And even though the pipe and one pipe in particular fell and hit a worker and he got hurt and he brought a 240 claim, and notwithstanding the fact that nothing fell from above and hit him, but the pipes were actually at the same level, the worker was, in effect, tipped over. The courts sided on in favor of the worker and expanded the law once again and said things laterally can fall. And it doesn't just have to be from above. And that too, will be considered a falling object case for 240. So basically, another takeaway courts in favor of injured workers under this harsh statute and know you have a case that deals with this kind of yeah. With the falling objects as set forth on the on the screen here is that the court looks at whether the object is being hoisted or secured or whether it requires securing or securing for the purpose of the undertaking. And in Wilensky, which is a very odd case, the court really looked at whether that those pipes required to be that were being set up there for that were going to be removed, required securing. And because they weren't, that's why they found it that way. Now, there's an interesting case that just came out of the second department, which is kind of goes the other way. Plaintiff was working in a bathroom demolishing a bathroom wall, and he was standing on second foot, second rung on the ladder. And as he was chipping away, the concrete part of the wall, part of the wall fell and hit him and he fell off the ladder. The second department actually found that that was not illegal on 240 violation because the wall was being demolished. And and it wasn't something that had to be secured or was being hoisted or secured or needed to be secured for the purpose of what he was doing. Um, it's a it's a new case that came out last year and I haven't seen any further cases that involve it. But it for me, it's a step in the right direction where the court isn't necessarily expanding labor law and have a case now which has similar facts that hope to be able to use this case to defend against. Rare piece of good news. Yeah. But just if I could go back to to the fallen worker real quick, you know, there are issues here and a lot of this comes up on ladders because in our falling from ladders cases, I'd say 60 to 80% of the time the worker, you know, maybe does a misstep or does something leans too far and falls from a ladder. But inevitably, at every deposition, whether it's in the accident reports or not, the latter has wobbled. And this this becomes an issue of the ladder wobbling and then the plaintiff falling. Um, one a couple of things that I've come up with this is that we have to look at what the actual cause of the accident was on the ladder, right? So if the ladder wobbles, you have to kind of look further and see if there's any kind of evidence that you can come up with to show that the plaintiff is not necessarily telling the truth at a case, for instance, where when the plaintiff went to the hospital and the hospital records, he had said that he had had a sinkhole, He passed out and that's what caused him to fall. But at his deposition, he said no. The ladder wobbled and I hit my head against the pipe. Um, so the issue came up was whether the actual cause of the fall was him passing out and falling from the ladder or whether it was going to be whether it was going to be the wobbling of the ladder causing the fall. Now, this obviously is an odd situation. A lot of litigation and discovery has to go into it in regards to evidentiary issues of bringing in medical records. But although, you know, we weren't able to get through summary judgment motions on that, it was pushing that factor. And the hospital records helped to settle the case because for a good price, because plaintiff was going to certainly be an issue of fact. And if we could get those records in, it might have destroyed the case. Um, and I, I always talk about this case because I think it's rather funny. Um, it's a second department case. Ross v three Realty where plaintiff was on a ladder and he was stung by bees. And due to his being stung by the bees and his reaction to it, that's what caused him to fall from the ladder. And the court found that there was no Labour law to 40 liability because it was the proximate cause of the accident was the bees and plaintiff's reaction to that. So it's a bit of an older case, but I try to use it when I can in motions just to try and really push the court in my direction. Well, let's be real. It was probably a spider, not a Pagani. I just want to say to that and to clarify that in order to fall within 240, the absence of a safety device must be the proximate cause of the accident. So labor law 240 will be inapplicable where the sole proximate cause is not actually the direct consequence of an elevation differential or gravity. And I'm handling a case now where the plaintiff was with two other workers carrying a large heavy metal plate on his shoulder to across a snow and ice covered beam, and he slipped on the beam and the plate came crashing down onto his hands, crushing it. And of course, all the surgeries that follow, including one to his neck. Right. But in this one, I am arguing now in the second department that the sole proximate cause of this accident was the slip on the icy surface, not the force of gravity of the plate, because critically, the plaintiff testified that the plate was steady before he fell. So I'm arguing the sole proximate cause was not the absence of a safety device, but rather the slip. It. That's a good segway, Michelle Because because as Russ and Michelle just just spoke about, all hope is not lost. We do have a couple of defenses to labor law, 240 claims. Michelle just mentioned the first one. The the main one, the overarching one is broadly titled sole proximate cause. And basically the case law has come down and said that if the defendants can demonstrate that inadequate safety device was provided and performed as intended, the latter functioned properly, didn't wobble, the scaffold stayed together, didn't collapse. Et cetera. Et cetera. Um. If we can prove that as a threshold matter, uh, the court will take a look at whether or not plaintiff's behavior, the injured workers behavior was the sole proximate cause of the accident, as opposed to anything to do with an improper device or an inadequate device. Um, usually, generally speaking, the best we can hope for with this defense is to get issues of fact. When the plaintiff moves for summary judgment, we can get the cases dismissed. It does happen. It happens relatively frequently in this in this world. But going in, it's these are challenging defenses because if, for example, at a deposition, everything can be going well for the defendant and if the plaintiff just mentions in one sentence that the ladder wobbled, it's basically his ticket to at least issues of fact and the denial of a defense motion. There's a subcategory of sole proximate cause that that has become known as the recalcitrant worker defense. A lot of defense lawyers use sole proximate cause. Exactly. Synonymously with recalcitrant workers. But there's a subtle distinguishment. Usually recalcitrant or recalcitrant worker is one that is presented with an appropriate device and knows to use that device and is directed to use that device like, you know, use that ladder, use that scaffold, that'll be that'll be appropriate, but somewhat actively or affirmatively decides to not use it to maybe cut a corner or take a shortcut or thinks another device would be more efficient under the circumstances. If we can demonstrate that a worker actively refused to use a device that was offered to him, we might be able to take advantage of the recalcitrant worker defense. Again, a subcategory of sole proximate cause, where generally the sole proximate cause, the worker doesn't have to actively reject it. The worker could use the device, but just misuse it in some way or something unforeseeable happens and we hopefully can take advantage of that defense. But these are the two main defenses available to defendants under this. And again, it's an uphill battle. Courts are reluctant to dismiss 240 because the statute is broad and the case law interpreting it is so broad and so favorable to the injured worker. There's another New York law that sometimes we see in our labor law, labor law cases in general that kind of has an interplay of everything we just talked about. There's a law in New York called the Wicks Law, and generally it goes back a long time, think the 1930. And generally it involves municipalities, towns and villages and cities that want to have construction projects done, capital work improvements, that kind of thing. And the law basically says that instead of hiring a general contractor, the municipality has to hire what we call the prime contractors directly. And by prime contractors mean the various most significant trades. I think the four identified in the law are electricians, Hvac, plumbers, and I think it's carpenters. And basically the law says that the town hires those four prime contractors directly. The town or village, whatever the case may be, usually hires. We see a lot, hires a separate construction manager as well to generally be their eyes and ears. And so when when a worker is injured at the at one of those types of projects, there's no GC and let's assume it's a labor law 240 claim, let's say a worker falls from a ladder. The worker will sue the town or the village, and he will also generally sue the prime contractors and I think sometimes sues the construction manager. But he'll try to demonstrate that obviously the owner is on the hook, in this case, the municipality, but he'll try to demonstrate that those other contractors had that level of authority over the work activities that resulted in the accident. Try to get those other parties on the hook under labor law. 240. And the reason I bring this up is because you will sometimes see claims come in, and if you're not insuring the municipality directly, frequently you'll be insuring a construction contractor that was considered one of these prime contractors and contracted directly with the town. And, you know, lots of times they'll be an insurance pickup where you're defending the town. So you'll have to really try to figure out who's who in that situation. And like we said, a lot of those folks are not going to be labor law 240 exposed. They're not going to have a level of authority over the specific work activities. Let's say it's an employee of the carpenter who gets hurt, the plumbers, the Hvac, the the electricians, generally speaking, are not going to be involved in that chain. So it would be much easier to defend them Now. Caveat. With the new case law expanding, plaintiffs lawyers are trying to argue that those other trades created site conditions that led to the accident to try to bring them under the umbrella as agents. But in the law, as a good practical example, these type of municipal projects where we see some of the interplay of these labels and analyzing who had authority over those work activities. So it's just just something to keep in mind because I know that, you know, especially on labor law projects, when a claim comes in, the first analysis is who are we going to defend in particular as additional insureds? And so it's not just knowing who the named insured is and what the named Insured's exposure is vis a vis the labor law. It's also knowing about the chains and the relationships and who the potential, what the potential exposure is. Right. And also determining under which of these prime contractors the plaintiff is working because he might be a sub, it might be an employee of a subcontractor or a sub subcontractor. So, you know, you want to kind of see what pile he falls into or she falls into and then just no pun intended for labor law worker. But, you know, to determine, you know, who's who's your quote unquote for the project or who's going to be the the the labor law for the defendant and whether your other. Tom, contractors are going to be have agency issues that they're going to have to figure out. Right. You don't want if you're not the owner, you're not the GC. It's important for the defense attorney to work with his client to really avoid being labeled by the courts an agent, because that, you know, as opposed to just being on the hook for perhaps some active and active negligence or perhaps getting the claim dismissed. You're now going to be on the hook as an agent for the strict liability, the absolute liability of labor law 240. And and you and you don't want that last. One of my final practice tips is a practical note from 1 or 2 of my cases. Earlier, I talked about the falling worker scenario, Some of the obvious ones, worker falls and ladder from scaffold, etcetera. The courts are also deeming another category of workers who are working on elevated surfaces like scaffolds falling worker. If a worker is on a surface, like a like a rung of a ladder or a scaffold and is performing work, which due to the nature of the work, might make him make him or her torque their body or or strain or stretch in a way that could conceivably lead to a loss of balance. And something occurs even if that worker doesn't literally fall, but instead, let's say, strains their back while trying to prevent themselves from falling or while struggling to regain control of a wobbling ladder. Just because the worker hasn't fallen. It's not necessarily you're not necessarily in the clear. The courts are now expanding the law even further to deem those types of situations covered by labor law 240 because you're trying to prevent gravity from hurling you to the ground. It's it's it's become a real challenge in the case. Law is really expanding in terms of the gray areas falling on the side of the plaintiffs. And I'm dealing with a case just like that now where plaintiff claims that a ladder wobbled and that caused his drill that he was using into the ceiling to bite and then twist and injuring him. He didn't fall from the ladder. He didn't fall at all. And the ladder didn't fall down either. He the the whole injury was due to the spinning of the drill. But so my argument here is, is they've said the case law really tends to lean towards. Well, was the was the plaintiff trying to prevent himself from falling. So that's that's where we're we're trying to push the case to try and get to 40 dismissed. But, you know, it's probably at the very least there'll be a question of fact and potentially a court saying, well, he was on a ladder and he got injured, so he gets to 40. But we'll await that summary judgment motion to be either side. What about a fall on a permanent staircase versus a ladder or a makeshift ladder. Somewhat in their confusing back and forth? The courts of New York have generally determined that falling down a permanent staircase is not covered by labor law 240 being that generally protective devices, a permanent staircase is not the type of first of all, they don't consider it a device. And secondly, it's not the type of surface or work environment that that warrants the protection of anything extra. So, in fact, I have a case where it's a case where a plumber, not a plumber, an electrician, claims that he stepped on a cut piece of plumbing conduit in the completed permanent staircase of a bigger building under construction. And while I'm fighting off claims that we'll talk about next week having to do with tripping and falling and another labor law statute, the plaintiff hasn't even pled labor law 240 because the case law, at least under those facts, is pretty clear. That permanent falls down, permanent staircases are not covered activity. It's another rare win for the defense, I suppose. Another interesting exclusion is a passageway. Again, another one of those right where I got the case. And the plaintiff ultimately found out after his testimony that he was walking from the foundation of the building, that only they were only doing the framing because they were working on the framing still. So there were no exterior walls yet to the building. But he was walking from there to the flat earth outside, but there was still a trench around the foundation from the had not yet been backfilled and there was a ramp and not even a ramp. It was a passageway because it was a flat. It wasn't elevated. It wasn't one height, you know, taller than another. There was no height differential. But he used that plywood to walk from the foundation over the trench onto the flat earth. And he slipped and fell because it had been snowing and he fell into the trench. And another one of those where I said, well, this is clear to 40. And I started doing my research. And there are certain exceptions where if the area where the accident happens is used only for ingress and egress and there is no active work being performed there, and there were other means of ingress and egress that might not fall within the labor law either. Right. And the only caveat to that is that if that passageway or area is being used to to move materials and equipment, then then it would fall under under 240. Yeah. But they were just going in and going out because it was easier. It was easier for them and it was quicker. So that was the only reason that they were using this plank to go in and out. I all these. Examples that we're giving, it's reinforcing how there's no even though we can kind of pretend there a bright line rules really the courts are looking at these cases on a very fact by fact basis. And, you know, you know, courts are unpredictable. And I had a case from a few years ago where the the injured worker, we think he was retrieving his jacket from a shelf high up in a storage room at a construction site. He claims something else. I think he claimed he was trying to grab a tool, but to get up there, he he literally found a paint compound bucket. I think it was it turned out to be 18in tall. He turned it over. He stepped up on the compound bucket to try to reach whatever he was going for, and he lost. It tipped over. He lost his balance and he broke his ankle and said, I got the claim and I said this, this can't be this this can't be what the legislature intended. What are we supposed to give him a harness and a lanyard for this? And we you know, we litigated it for several years and ultimately the court denied all our motions and said issues of fact for a jury in the case settled. Um, but, you know, and I don't blame the court in a sense because plaintiff's lawyer in that instance gave him gave the court ten different cases where something similar happened in the appellate court said, you know, as ridiculous as it is, labor law 240 applies. And so, you know, it's just it's a it's an example of of. Sometimes the absurdity. We do have a de minimis defense, but it's become so outlandish. I think the height differential has to be like less than six inches at times. Um, but, but, you know, if it's not, if it's something more than a foot or so, the courts are going to say more likely than not, at least issues of fact or perhaps in favor of plaintiff. Right. So it's it's a challenging law. Now, again, the harshness can be offset by risk transfer efforts in terms of contracts and things like that. And more more basically just, you know, ensuring or trying to ensure counseling, construction companies, counseling your insureds to the extent possible. I counsel have repeat clients and I counsel them all the time on, uh, well, let's try to use something different. Let's, let's not have a let's not have an unsecured A-frame ladder here. Can we fit a baker scaffold in here? A lot of my construction clients are now attaching to their contracts as exhibits agreements that all parties to the contract will adhere to a ladder. Last policy where you know a unsecured a-frames and extension ladders at sites are really supposed to be a last resort. You're supposed to use baker scaffolds or something more stable and secure with guardrails and handrails to provide the workers with protection. But, you know, you visit any, you know, any any time you can. If you take a look, walk down the street, take a look at some of these traits. They're very at some of these sites. They're very chaotic. You know, And the worker, if you were to present a ladder last policy to some of these workers, they'd say, what are you talking about? How am I supposed to get a baker scaffold in this small spot? And the next thing you know, the injured worker is using an A-frame in a closed position and he's putting it on top of a scaffold. And and as long as he's not 100% negligent, the wall is going to find in his favor. It's it's it's it's challenging. So if I could leave you with any any overarching words of wisdom, it's that please have your expectations ready for an uphill battle. Um, understand that the defenses to liability are challenging at best. Um, and and in many cases we'll be preparing to fight damages. Um, and that's, that's the overview. Yeah. But Russ and Dave, thank you both so much. We thank everyone for your time and we hope that you walked away with something new that you didn't know before. Of course, myself and Dave and Russ are available if you have something that flies across your desk and you just don't know what to do with it, or you want to see if we have something similar. Our information is right here. We're happy to be a sounding board. You can pick our brains, you can call us or email us.