SLIPPERY STAIRS AND THE LABOR LAW: NEW GUIDANCE,
By Arthur P. Xanthos
Defense counsel and carriers should be
aware of the recent Court of Appeals pronouncement on Labor Law 240(1) cases,
particularly because this latest pronouncement provides a roadmap for defeating
plaintiffs’ common stratagem – the summary judgment motion.
The
decision is O'Brien v Port Auth. of N.Y. & N.J., 2017 N.Y.
LEXIS 725, 2017 NY Slip Op 02466 (N.Y. Mar. 30, 2017). The facts have been seen many times: Plaintiff working on construction site, while
descending an exterior temporary scaffold staircase which was wet and slippery
due to rain, slips and falls thereby injuring himself. Plaintiff sues all relevant parties and the
focus of the complaint is Labor Law 240(1).
Plaintiff made the traditional
summary judgment motion, supported by an expert affidavit from a professional
engineer who opined that the stairs were "not in compliance with good and
accepted standards of construction site safety and practice", that
slippery conditions on stairways should be eliminated before use, and that the
stairs in question were smaller, narrower, more worn, and steeper than typical
stairs. The expert concluded that these
conditions coupled with the fact that the stairs were wet due to rain created a
dangerous condition that was not in compliance with good and accepted standards
of construction site safety and created a significant risk of slipping on the
stairs and of thus falling down the stairs.
In opposition, defendants
submitted affidavits from a construction safety expert, who disagreed with
plaintiff’s expert, and opined that the staircase was designed for both indoor
and outdoor use and provided traction acceptable within industry standards and
practice in times of inclement weather. He further disagreed that the steps
were too narrow, or that the step treads had been worn down. He noted that the staircase provided both
perforated holes to allow rain to pass through and raised metal nubs for
traction. He concluded that these anti-slip
measures were sufficient. The defendants’ expert also opined that the use of
both handrails could have helped prevent plaintiff's fall.
Not surprisingly, the lower
court and the appellate division ruled in favor of the plaintiff on the
motion. The Court of Appeals, however, reversed
plaintiff’s summary judgment award. The Court’s
primary rationale was the following: the
mere fact a plaintiff falls from a height on a construction site does not give
rise to automatic Labor Law 240(1) liability, and where the
defendants raise questions of fact as to whether a safety device (in the O’Brien
case, the staircase) provided adequate protection to the plaintiff, summary
judgment is not warranted.
While this decision and rationale
is not a technical rewrite of Labor Law 240(1), it does mark a sea change in what
presumptions the lower courts should make in analyzing these motions. Heretofore, the process with some exceptions
has been maddeningly difficult for the defense, because once a court heard that
a plaintiff had fallen from a height and was injured, the court presumed –
regardless of contradicting expert affidavits -- that inadequate safety devices
were in place. In other words, courts have
been utilizing the fact of the fall to impose automatic liability.
O’Brien counsels the
courts against making that presumption.
-APX 5/26/17
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