New York’s Scaffolding Law and Strict Liability

According to New York’s Scaffold law (Labor Law § 240(1)), contractors and owners engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” must provide ” 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.” Construction attorneys have long believed that this law automatically imposes strict liability on contractors and owners who have failed to provide proper safety measures. However, recent case law may shed some new light on New York’s Scaffolding Law.

In O’Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27 (N.Y. Mar. 30, 2017), a construction worker was injured when he slipped down the stairs of a temporary scaffold while working on a construction site. The worker sued his employer and the property owner and the parties produced conflicting expert testimony regarding the adequacy of the temporary staircases to protect plaintiff against the risk of falling. The court held that the worker’s injury does not necessarily establish a violation of the Scaffolding Law when there are triable issues of fact regarding the adequacy and safety of the staircase. The court refused to rely on the presumption that there wasn’t proper protection in cases involving ladders or scaffolds that malfunction for no apparent reason by noting that there was a triable issue of fact concerning the safety of the staircase.

However, in Kebe v Greenpoint-Goldman Corp., 2017 N.Y. App. Div. LEXIS 3643 (N.Y. App. Div. 1st Dep’t May 9, 2017), the First department upheld the lower court’s decision granting summary judgment for the plaintiff by relying on the presumption that there wasn’t proper protection. In that case, plaintiff was injured after falling from a ladder that he claimed had wobbled, was missing two rubber feet, and had spun and fell over. The court held that there wasn’t a triable issue of fact regarding the ladder’s safety and that the superintendent’s testimony that he saw the ladder standing soon after plaintiff’s fall was insufficient to refute that presumption. Ultimately, the applicability of the presumption that the ladder or scaffolding device was not good enough to afford proper protection turns on whether defendants can raise a triable issue of fact. However, that doesn’t just mean conflicting testimony; there must be legitimate questions of fact in order to prevent strict liability.

New Year, New Rules

On January 20-22, the American Bar Association’s Forum on Construction Law will hold its annual winter meeting in San Francisco, California. Construction law, like the industry itself, is constantly evolving, and national conferences like this one provide a valuable opportunity for lawyers practicing in the industry to get together and discuss recent developments, trends, and changes in the law.

One of the presentations that will be given at the conference concerns the interface between employment law and construction. The construction industry has a long and checkered past when it comes to employment issues, and current trends suggest the industry will remain at the jagged edge for years to come. Two prime examples illustrate this point.

As our country heads to another presidential election at the end of this year, the issues surrounding immigration—documented, undocumented, skilled, unskilled, temporary, or permanent—have once again come to the forefront, and are likely to remain there for the foreseeable future. By any measure, the construction industry has a deep and complicated past with immigrant workers. As the legal landscape continues to shift—influenced by Executive Orders, court orders, and state-level legislation—construction companies must remain fully apprised of their obligations and common pitfalls. Ignorance of the law, even when the law is constantly shifting, is seldom accepted as a defense.

Another issue likely to make its way to the ballots in several states this year is the legalization of marijuana. Regardless of the outcome of these state initiatives, marijuana will almost certainly remain illegal at the federal level, and subject to DEA seizure and federal court prosecution. For employers, the questions become thornier. Can an employer ban the after-hours use of a substance that is now legal, at least at the state level? Standards exist for measuring impairment of driving when it comes to alcohol, but not to marijuana, so how does an employer adjust its policies to reflect this uncertainty? When an employer has employees in multiple states, some of which have legalized marijuana and some of which have not, whose rules govern the employee? And what if that employee travels between offices?

It is traditionally said that there was an old curse that went “may you live in interesting times.” The story behind the curse is apocryphal—there never was such a saying. But the essential point is still well-taken. Construction industry participants currently do, and will for the foreseeable future, live in interesting times. As such, timely, accurate, executable advice continues to be valuable, and provide some stability, even as the legal landscape shifts under our feet.

A Beacon in the Darkness: Design Professional Liability Post Beacon

We recently authored an article in the December edition of California Buildings News regarding analyzing the true effect on liability for design professionals in the wake of the Beacon design in California. The article can be found here. For further information, please feel free to reach out to the author.

Illinois Court Keeps with Recent Trend and Affirms Summary Judgment for Contractor in Jobsite Injury Lawsuit

Taking advantage of recent law in favor of contractor defendants in construction negligence lawsuits, Gordon & Rees recently obtained summary judgment in favor of its demolition contractor client in a high-exposure multi-plaintiff lawsuit filed in Cook County, Illinois by a personal injury lawyer.

In the consolidated action, the two plaintiffs were employees of a scaffold erection company hired by Gordon & Rees’ client to erect a scaffold to facilitate the demolition of a Chicago high school gymnasium ceiling. During the erection, the scaffold collapsed, causing the plaintiffs to fall 21 feet to the ground and sustain serious injuries. Both plaintiffs alleged that Gordon & Rees’ client, as the hiring contractor, neglected its responsibility to ensure that plaintiffs worked under safe conditions and failed to properly supervise plaintiffs’ work.

Gordon & Rees sought summary judgment, contending that its client did not assert any control over plaintiffs’ work whatsoever. Relying upon both testimony as well as the contract, Gordon & Rees argued that because there was no control over plaintiffs’ work, it must follow that there was no liability.

The Cook County court agreed with Gordon & Rees, citing to favorable Illinois law regarding Sections 343 and 414 of the Restatement (Second) of Torts. Specifically, the court found that in order for a contractor to be subject to liability, the contractor or employer must have retained at least some degree of control over the manner in which the work was performed; it is not enough that the contractor merely has a general right to order the work stopped or resumed. With respect to the contract, the court agreed that Illinois law is clear that contract language alone is not sufficient to impose liability, nor is the existence of a safety program (citing Martens v. MCL Construction Corp., 347 Ill.App.3d 303 (1st Dist. 2004)).

Here, because the demolition contractor was only on site once—for a half hour—and never observed the scaffolding in the condition that led to its collapse, it could not be found that the contractor controlled the means and methods of plaintiffs’ work sufficient to rise to potential liability.

The Martens case and similar opinions that have since followed are clearly helpful for contractors who find themselves entrenched in construction injury lawsuits filed by personal injury attorney firms. To wit, courts will no longer deny summary judgment just because one party merely contracted with or supplied a safety manual to another party. Rather, there must be evidence of sufficient interaction and control in order to potentially impose liability on the part of a contractor.

The Slavin Doctrine (Florida) – Recent Developments

In 1958 the Slavin doctrine was first articulated by the Florida Supreme Court. Slavin v. Kay, 108 So.2d 462 (Fla. 1958). That doctrine is that “a contractor is relieved of liability caused by a patent defect after control of the completed premises has been turned over to the owner.” Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988)(Court expanded the Slavin doctrine to apply to architects and engineers). Two recent cases in Florida relied upon the Slavin doctrine precluding liability against design professionals.

In Transp. Eng’g, Inc. v. Cruz the trial court, relying upon the Slavin doctrine granted summary judgment in favor of the contractor and denied the same relief to the design professional. The court affirmed summary judgment in favor of the contractor and vacated the trial court’s order denying summary judgment to the engineer, finding, “it was undisputed . . .  that DOT accepted the project with bare (uncushioned) guardrail ends within the clear zone, and that this was an open and obvious condition. Therefore, even if TEI violated its standard of care . . . summary judgment should have been granted in TEI’s favor based upon Slavin and Easterday. Transp. Eng’g, Inc. (TEI) v. Cruz, 2014 Fla. App. LEXIS 18273, 39 Fla. L. Weekly D 2333 (Fla. Dist. Ct. App. 5th Dist. Nov. 7, 2014)(case involved changes to state’s standard design for guardrails by Florida DOT which were followed by design engineer; thereafter, a third party was killed hitting the unprotected guardrail).

In McIntosh v. Progressive Design & Eng’g the district court, relying upon the Slavin doctrine affirmed the lower court where the jury determined that the design professional was negligent in its design of a traffic signal (the legal cause of a traffic fatality); however, “the negligent design was accepted and discoverable by FDOT with the exercise of reasonable care.” McIntosh v. Progressive Design & Eng’g (In re Estate of McIntosh), 2015 Fla. App. LEXIS 163, *7, 40 Fla. L. Weekly D 160 (Fla. 4th DCA Jan. 7, 2015). The result in McIntosh is factually distinguishable from other cases that have relied upon the Slavin doctrine. In McIntosh, the ultimate owner of the traffic signal was not FDOT, but rather was Broward County, Florida; which entity would not give its final acceptance of the project work until the final phase of the project was completed (the burn-in period). The fatal accident occurred prior to control of the traffic signal being turned over to the county. The district court rejected this argument; instead finding, that “responsibility for a patent defect rests with the entity in control [when the design was approved and accepted] and with the ability to correct it.” Id. at *12. In McIntosh, the entity in control was the FDOT. Only time will tell whether other district courts will follow the approach taken in McIntosh.

Post Beacon California Appellate Case Finds No Duty for Designer

In State Ready Mix Concrete v Moffatt and Nichols, 2d Civil No. B253421, the California Court of Appeals found that an engineer did not owe a supplier a duty of care and therefore dismissed the supplier’s cross-complaint.  The course followed the lead of Beacon[1] by applying the Biakanja [2] factors to determine whether a duty existed.

Certainly, the ruling would seem to provide protection to engineers from direct actions brought by contractors and suppliers.  However, as with Beacon itself, the application of the Biakanja factors make it difficult to develop hard fast rules.  While designers would like to argue that they do not owe contractors a duty of care when producing their design, this case will not be particularly helpful.

In State Ready Mix, Moffatt & Nichols did not develop the concrete mix design but only reviewed it for the benefit of the project manager.  More importantly, State Ready Mix produced a non-conforming concrete and failed to test the concrete to make sure it met the specification.  These two factors weighed heavily in the courts analysis.  This decision will be of little value in an instance where the contractor attempts to sue a design professional alleging that the designer’s work caused the contractor increased costs.  The application of Beacon to this scenario and other common situations will be looked at in depth during a panel discussion at West Coast Casualty’s Construction Defect Seminar in Anaheim, California, May 14 & 15, 2015.


[1] Beacon Residential Community Assn. v. Skidmore, Owings & Merrill (2014) 59 Cal.4th 568
[2] Biakanja v. Irving (1958) 49 Cal.2d 647