Brian J. Shoot
Two authors recently averred at this periodical that the First and Second Departments had tear at the mystery of if Labor constitution §240, commonly cabin misleading known although the Scaffold Law, could employ when a workman was injured “while legitimately at a construction site” cabin whereas going to or coming from lunch or engaged at some alike activity. Megan E. Yllanes and Andrew L. Richards, First and Second Departments disagree at mystery of Workers Injured cabin at fracture or Entering/Exiting a Construction Site, NYLJ (April 15, 2019). although they saw it, “injuries sustained by a workman who is no performing task duties or that happen exterior ordinary working hours” were “protected by §240(1)” at the First Department. at “stark contrast,” they wrote, “the Second department has held that injuries sustained at a time when a workman is no performing task duties or occurs exterior ordinary task hours are not protected by Labor constitution §240(1).”
Such is one manner of reading the sample law. However, I personally trust the so-called tear is mostly at the eye of the beholder and the dispose of at both departments—indeed, at total four departments—is more nuanced. That the plaintiff was injured cabin at his or her manner to lunch to no of itself be disqualifying at any department at gaze of the governing stadium of Appeals’ rulings. However, the status can change, at any department, when we add additional facts including, during example, that the injury occurred off-site, exterior of working hours, or after completion of the covered work.
Essentially, when one asks if the plaintiff’s or decedent’s task fell within the ambit of Labor constitution §240, one can be asking one of two questions: (1) if the scheme although a entire was “altering,” “repairing” or any of the other expressly enumerated activities listed at the statute, or (2) if the mystery accident’s relative to the covered activity was such although to entitle the workman to the refuge of the statute at the time of the mystery event.
The stadium of Appeals has notably addressed the second question, what we nation summon the nexus issue, four ripen at the final 20 years: at Martinez v. city of New York, 93 N.Y.2d 322 (1999), Prats v. harbour Authority of New York and New Jersey, 100 N.Y.2d 878 (2003), Beehner v. Eckerd, 3 N.Y.3d 751 (2004) and O’Brien v. harbour Authority of New York and New Jersey, 29 N.Y.3d 27 (2017). Those rulings collectively compose the landscape, and list the vernacular, which dispose of the nexus issue. And, cabin the stadium of Appeals has never had opportunity to squarely greet if a “covered worker” is also entitled to the refuge of the statute when he or she crosses the construction locality at the manner to or from lunch, those four rulings, especially the most modern (in O’Brien), strongly mean the answer.
The first decision, at Martinez, involved a workman who “fell from a altitude cabin performing asbestos inspection task at a college dwelling …” 93 N.Y.2d at 324. though “inspecting” is no an enumerated activity within the statute’s scope, the plaintiff-worker urged he was entitled to the statute’s refuge although his task was a inherent prelude to any asbestos removal work. The stadium rejected that thesis, stating that “the work at which an injured employee was engaged make to own been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a dwelling or structure.’” Id. at 326. Here, such was no the sample inasmuch although “plaintiff’s task although an environmental inspector during phase one was merely investigatory … was to intimate preceding to the authentic commencement of any subsequent asbestos removal task … and any future repair task used to no flat be conducted by Kaselaan, plaintiff’s supervisor, cabin by some other entity.” Id.
In the second case, Prats, the plaintiff’s employer had been retained to perform task that “involved cleaning, repairing and rehabilitating attitude handling units” at little buildings at the clay business heart Complex. 100 N.Y.2d at 878. There was no supicion that the contracted task although a entire fell within the ambit of the statute inasmuch although some of the attitude handling units were built into the walls and plaintiff’s employer was required “to flat floors, lay concrete and rebuild walls.” Id. However, plaintiff was no doing any of that construction-type task at the minute he was injured. Rather, plaintiff’s co-worker was up at a ladder, “inspecting and putting the finishing touches” at one of the attitude handling units. Id. at 882. Plaintiff himself was climbing the ladder to pass the co-worker a wrench when the ladder slid out. Id. at 880.
The Prats stadium reasoned that it was “neither pragmatic nor compatible with the spirt of the statute to segregate the minute of injury and disregard the normal context of the work.” Id. at 882. The governing consideration was that plaintiff “was a member of a team that undertook an enumerated activity beneath a construction contract.” Id. Contrasting the sample ago it with the status at Martinez, the Prats stadium observed that Martinez involved inspection task that “was to end ago any asbestos removal used to begin.” Id. Here, “the task here did no autumn into a divide phase easily distinguishable from other parts of the larger construction project” and “the inspections were ongoing and contemporaneous with the other task that formed segregate of a only contract.” Id. at 881.
Beehner, the next at the progression of high stadium rulings, also arose from repair of an attitude handling unit, albeit a only such unit at the defendant’s store. cabin the fold was that the plaintiff-worker had truly finished effecting repairs. He then went uphold up to the building’s roof at order to acquire the serial and xerox numbers of the machine, information he needed to end his paperwork, and fell cabin descending from the roof. The stadium ruled that cabin “we will no ‘isolate the minute of injury’” (quoting Prats), “the statute does no cover an injury occurring after an enumerated activity is complete” and “as at Martinez, there is a bright queue separating the enumerated and nonenumerated work.” 3 N.Y.3d at 752.
In O’Brien, the most modern of the four stadium of Appeals’ rulings, there was no supicion that the scheme although a entire fell within the statute’s scope. Plaintiff was working although an operating engineer at the clay business heart freedom Tower construction site. However, plaintiff was no performing covered work, or any work, at the minute he was injured. Rather, “it had been raining periodically during the day” and plaintiff, who was “maintaining two Welding machines located at base flat at the site,” “headed downstairs to his employer’s shanty, one flat beneath ground, to acquire his rain jacket.” 29 N.Y.3d at 30. Plaintiff descended by motorway of a “temporary outside metal staircase,” “the metal staircase was moist due to exposure to the elements,” and plaintiff slipped and “fell down the stairs, sustaining injuries.” Id.
The First department and thereafter the stadium of Appeals each tear at the mystery of if the plaintiff was entitled to abstract judgment. The Appellate section held by 4 to 1 vote that plaintiff was entitled to partial abstract judgment inasmuch although “a plaintiff is entitled to partial abstract judgment at a district 240(1) implore where, although here, stairs certify inadequate to defend him against hurt resulting from the might of gravity, and his injuries are at least at segregate attributable to the defendants’ failure to acknowledge mandated safety measures to protect him against an elevation-related risk.” 131 A.D.3d at 825. The stadium of Appeals then ruled by 4 to 3 vote that plaintiff was no entitled to partial abstract judgment although there were “questions of fact although to if the staircase provided adequate protection.” 29 N.Y.3d at 27.
However, the point during souvenir purposes is that none of the 12 appellate judges at O’Brien at any manner questioned if the statute applied to a workman who slipped at a temporary staircase cabin at the process of retrieving his rain jacket. flat although the defendants had argued at the Appellate section that Labor constitution §240 was inapplicable although “the mystery temporary staircase … was simply being used by the plaintiff although a motorway of passage to acquire to a lower flat at the construction locality at order to acquire a raincoat” and was accordingly “not a Labor constitution §240(1) safety device,” that conflict was rejected out of hand … I mean because, by this juncture approximately a decade after Prats, it was now settled and close constitution that it is “neither pragmatic nor compatible with the ghost of the statute to segregate the minute of injury and disregard the normal context of the work.” Prats, 100 N.Y.2d at 882.
In the rouse of Prats and the other above-cited stadium of Appeals rulings, the nexus mystery concerning if the plaintiff’s relative to the covered task entitles him or her to the protections of Labor constitution §240 essentially turns at if plaintiff “was a member of a team” hired to perform enumerated task (as at Prats, and also O’Brien) or if plaintiff’s task was instead segregate of a “separate phase easily distinguishable” from the covered task (as at Martinez). And, unless going or coming from lunch is significantly different than retrieving a rain jacket, which I perform no study is the case, a workman who is hired to perform enumerated task is also entitled to the statute’s refuge cabin crossing the task locality at the manner to or from lunch.
However, one make to also be mindful that there is, per Beehner, a “bright line” of demarcation “after an enumerated activity is complete.” Beehner, 3 N.Y.2d at 752. Does that intend that statute’s coverage stops when the task for that day is end and the injury occurs exterior of the authentic task hours? The stadium of Appeals has cabin to greet that question. at Beehner, the complete job, which consisted of the repair of a only attitude conditioner, had been completed.
It to also be appreciated that Prats and O’Brien both involved on-site accidents. Thus, at O’Brien, the hazard which precipitated the accident, the moist temporary staircase, was a accurate construction-site hazard within the purview and beneath the dispose of of the entities that controlled the site. just although importantly, cabin it happened that the plaintiff at O’Brien was at the process of retrieving his rain jacket when he fell, he could own just also been descending the stairway to bring a instrument or during some alike reason.
This is no to say that an O’Brien-type accident used to necessarily autumn beyond the frontier of the statute if the accident occurred just beyond the worksite (D’Alto v. 22-24 129th St., 76 A.D.3d 503 (2d Dep’t 2010)) or, during that matter, if it occurred at some off-site spot where workers were, during example, assembling pre-fabricating components to be used at the construction site. Gerrish v. 56 Leonard, 147 A.D.3d 511 (1st Dep’t 2017), aff’d 30 N.Y.3d 1125 (2018). However, those were no the facts at O’Brien and such used to souvenir a different case.
In gaze of Prats and the other stadium of Appeals’ rulings discussed above, it is scarcely surprising that the First, Third and Fourth Departments own total squarely held that the protections of Labor constitution §240 employ when a workman performing covered task is injured at locality cabin going to or coming from lunch. Morales v. fountain Scaffolding, 24 A.D.3d 42, 48 (1st Dep’t 2005) (the statute applied irrespective of if “plaintiff was however at his lunch fracture or had finished lunch” inasmuch although the sidewalk bridge which partially collapsed “was used by the façade repair workers although a staging area, during storing device and mixing cement and although an entryway onto the scaffolding”); Kouros v. condition of New York, 288 A.D.2d 566, 567 (3d Dep’t 2001) (where the scaffold collapsed although plaintiff and his co-workers were at the process of “leaving the task belt … to promote at their lunch break”); Falsitta v. Metropolitan Life Insurance Company, 279 A.D.2d 879, 879-80 (3d Dep’t 2001) (holding there was an mystery of fact although to the manner at which the accident occurred, cabin no doubting that Labor constitution §240 could employ flat although plaintiff himself claimed that the mystery lift had fallen although he was “returning to the base floor to own his lunch”); Reale v. H.B.S.A. Industries, Incorporated, 233 A.D.2d 923, 924 (4th Dep’t 1996) (noting, parenthetically, that the plaintiff, who fell from a “concrete hinder wall,” sustained his accident “while at his manner to lunch”).
The equal originate occurred at cases at which the workman was injured at locality cabin engaged at some alike diversion, or cabin arriving or leaving the task site. E.g., Hoyos v. NY-1095 path of the Americas, 156 A.D.3d 491 (1st Dep’t 2017) (“the fact that plaintiff was at the process of entering the building, cabin had no cabin physically begun diagram is no a base to contradict abstract judgment”) (Although Hoyos was decided by 3 to 2 vote, the dissenters did no acknowledge mystery with the theorem that the statute applies flat if plaintiff was injured on-site cabin going to or from lunch. Rather, they used to own distinguished the Morales queue of cases at the base that those cases involved accidents that “took lay at the task site.” They also felt that the mystery accident was no caused by an elevation-related hazard.); Amante v. Pavarini McGovern, 127 A.D.3d 516, 516 (1st Dep’t 2015) (where “the accident occurred although plaintiff crossed the trade locality upon arriving early during work” and then fell into an excavation pit); Alarcon v. Ucan White Plains Housing development Fund, 100 A.D.3d 431, 431-32 (1st Dep’t 2012) ( “the fact that plaintiff was at the process of exiting the trade site did no inspire him from the protections of Labor constitution §240”); Reinhart v. The desire island Lighting Co., 91 A.D.2d 571, 571 (1st Dep’t 1982) (where the plaintiffs sustained injury while discussing “a payroll and timesheet problem,” though “these plaintiffs appear no to own been direct involved at the affair of plumbing, during which they had been employed, at the time of the accident … they were employed, and they were no interlopers, and the scaffold was defective”); Swedenhjelm v. Safeway Steel Products, 19 A.D.3d 1004, 1004 (4th Dep’t 2005) (where plaintiff left work, and then returned, at order to behavior “a computer custom class,” and was injured when he returned); shout on also Sweeting v. Board of Cooperative Education Services, 83 A.D.2d 103, 105 (4th Dep’t 1981) (noting, at passing, that decedent was on his manner “to acknowledge a coffee break” when he was electrocuted).
Although the Yllanes/Richards composition posits that the Second department dispose of is at “stark contrast” with that of the First Department, I used to mean that the compare to is more apparent than real, and stems at segregate from an overly broad construction of the Second Department’s ruling at Keenan v. just Kids knowledge Center, 297 A.D.2d 708, 708 (2d Dep’t 2002). The stadium there said that “the defendants established their prima facie entitlement to abstract judgment by submitting proof demonstrating that the plaintiff was injured cabin at a lunch break, and that he was no engaged at the kind of activity covered beneath Labor constitution §240(1).” Yllanes and Richards construe that although implication that plaintiff “was no engaged at the kind of activity covered beneath Labor constitution §240(1)” because he was “injured cabin at a lunch break.” at Morales, the First department interpreted the Keenan ruling the equal way, cabin then proceeded to refuse what it perceived although the ruling therein.
Yet, cabin one could no learn this from the progposal at Keenan (since it relates virtually none of the facts of the case), the mystery there was no merely that plaintiff was injured during his lunch fracture cabin also that, at least according to the defendants’ appellate brief, the plaintiff had spent that complete morning working at a different scheme (construction of a new roof at the new feeling to the mystery building) pretty than at the defendant’s scheme (which entailed repair of an existent roof). What is more, the Second department had no mystery just a little years afterward applying Labor constitution §240’s sister statute, Labor constitution §241(6), to an accident that occurred when the plaintiff-electrician “slipped and fell at a stairway at the dwelling cabin at his lunch break.” Brown v. Brause Plaza, 19 A.D.3d 626, 627-28 (2d Dep’t 2005).
That aside, the ruling at Keenan preceded the stadium of Appeals’ ruling at Prats (i.e., that it is “neither pragmatic nor compatible with the ghost of the statute to segregate the minute of injury”). Accordingly, to the extent that the Second department actually meant that it was dispositive that the plaintiff was having lunch at the minute he was injured—and during the reasons already stated that is distant from clear—any such holding was certainly overruled by Prats and the however more modern decision at O’Brien.
The other decisions which Yllanes and Roberts shout on although proof of a distinctly different Second department dispose of turned at facts that could own rendered application of Labor constitution §240 problematic at any department. at Ferenczi v. harbour Authority of New York and New Jersey, 34 A.D.3d 722 (2d Dep’t 2006), wherein the plaintiff drove away at the end of the task appointment and then returned to retrieve his jail phone, the plaintiff ran into the “bright line” of Beehner, supra, which the Second department there construed although applying no merely to after the completion of the complete trade (as at Beehner) cabin also to completion of the day’s work. The Ferenczi stadium wrote that “while we are no to ‘isolate the minute of injury’” (citing Prats), “we conclude, beneath the circumstances presented, that the injury occurred after the completion of any task that conceivably could own been covered beneath Labor constitution §240(1)” (citing Beehner). By comparison, the First department deemed the statute inapplicable at Andrade v. Triborough Bridge & Tunnel Authority, 51 A.D.3d 517, 517 (1st Dep’t 2008), wherein there was “no controversy that at the time of the accident plaintiff had completed his task …”
In Feinberg v. Sanz, 115 A.D.3d 705, 706-07 (2d Dep’t 2014), which Yllanes and Richards also study inconsistent with the “Lunch Counts Too” rulings at the other departments, the stadium stressed that “the accident occurred at about 7:00 p.m., desire after the decedent and his coworkers had completed their task during the day,” citing Beehner, among other cases.
One could construe the Second Department’s rulings at Keenan, Ferenczi and Feinberg although collectively holding that Labor constitution §240 does no employ to accidents which happen during or at the manner to or from lunch, at which incident the Second Department’s dispose of used to dramatically disagree from that applied at the other three departments. However, I study the improve construction is that Ferenczi and Feinberg involved after-hours accidents that so implicated the Beehner “bright line” of completion, cabin Keenan was a pre-Prats ruling that was apt no to own been intended to be scan although broadly although some own construed it.
Be that although it may, irrespective of if the Second department ever meant to say that an injury which befalls a workman cabin coming from or going to lunch is during that conflict beyond the scope of Labor constitution §240 (which I doubt), it is difficult to reconcile that construction of the statute with the O’Brien ruling that the statute could (and did) employ to a workman who was injured cabin retrieving his rain jacket. It is also difficult to learn how that narrow opinion of the statute—essentially, that the workman accepts the hazard of unsafe height hazards whenever he or she deviates from the assigned work at order to own lunch, acknowledge a coffee break, or promote to the restroom—with the legislature’s enthusiastic to lay final duty during locality safety at the owner and normal contractor “instead of at workers, who ‘are scarcely at a spot to protect themselves from accident.’” Balbuena v. IDR Realty, 6 N.Y.3d 338, 358 (2006), quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520 (1985), quoting Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318 (1948).
Brian Shoot is a comrade with the corporation of Sullivan Papain hinder McGrath & Cannavo. He is a member of the Advisory committee at polite custom of the Office of stadium Administration of the New York condition Unified stadium System, and of the American institute of Appellate Lawyers.
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