New York, N.Y. (June 2022) - In recent years, there has been a concerning development regarding judicial analysis of Labor Law § 241(6). Specifically, Courts have – incorrectly – applied a somewhat "absolute liability" interpretation to Labor Law § 241(6). For example, in Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept. 2019), the Court ruled that:
This ruling suggests that, if evidence shows a violation, and said violation proximately caused the incident, then a party is entitled to summary judgment as to liability. In other words, the violation of an Industrial Code, which imposes a specific duty, constitutes negligence per se. One should note that this incorrect analysis is far from an isolated incident in recent years. 1 However, Labor Law § 241(6) is not an "absolute liability" statute, like Labor Law § 240(1), and these recent rulings are contrary to decades of jurisprudence.
New York Courts have long recognized a distinction between state statutes and local ordinances or administrative rules and regulations. As a rule, violation of a state statute that imposes a specific duty constitutes negligence per se or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence. Elliott v. City of New York, 95 N.Y.2d 730 (N.Y. 2001); See also, Fluker v. Ziegele Brewing Co., 201 N.Y. 40 (N.Y. 1911); Amberg v. Kinley, 214 N.Y. 531 (N.Y. 1915); Schumer v. Caplin, 241 N.Y. 346 (N.Y. 1925); Teller v. Prospect Height Hospital, 280 N.Y. 456 (N.Y. 1939); Major v. Waverly & Ogden, Inc., 7 N.Y.2d 332 (N.Y. 1960).
The Constitution of the State of New York commits to the State Legislature alone the power to enact a statute. And a statute, once passed, remains fixed until repealed or amended. The legislature can confer upon a commission, officer, board, or municipality the power to make rules and ordinances governing the administration of their respective affairs. For example, in Labor Law 241(6), the "commissioner may make rules [i.e., Industrial Code] to carry into effect the provisions of this subdivision, and owners and contractors ... shall comply therewith." However, the rules promulgated by a board or commission, unlike a statute, may be suspended, modified, or varied, depending upon conditions or the "caprice of any officer, board or individual." Based upon these considerations, New York Courts have long and repeatedly held that a violation of an ordinance or code, if it has some connection with the injuries complained of, is evidence, more or less cogent, of negligence, which the jury may consider along with all other facts proved.
The violation of an Industrial Code provision, alone, cannot give rise to liability, under Labor Law § 241(6), without regard to negligence. In Monroe v. City of New York, 67 A.D.2d 89 (2d Dept. 1979), the Second Department held that subdivision 6 of Section 241 of the Labor Law imposes a nondelegable duty upon owners and contractors to vicariously respond in damages for injuries sustained due to the negligence of contractors or subcontractors. In Long v. Forest-Fehlhaber, 55 N.Y.2d 154 (N.Y. 1982), the New York Court of Appeals held that proof of a violation is "merely some evidence which the jury may consider on the question of negligence." In O'Leary v. Raymond Le Chase, Inc., 125 A.D.2d 991 (4th Dept. 1986), the Fourth Department held that a judicial instruction that a defendant "had a nondelegable duty to provide a safe workplace in accordance with the statutory requirement irrespective of its control and supervision" was improper. A jury could have inferred from the Court's instruction that breach of a regulation promulgated pursuant to a statute was tantamount to a violation of the statute. Although the duty imposed by Labor Law § 241(6) is nondelegable, breach of a regulation promulgated under that statute is only some evidence of negligence and instructing a jury that breach of a regulation promulgated under Labor Law § 241(6) creates liability constitutes error. Further, in Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (N.Y. 1998), the Court of Appeals held:
(Emphasis added.)
"A violation of [an Industrial Code], while not conclusive on the question of negligence, would thus constitute some evidence of negligence and thereby reserved, for resolution by a jury, the issue of whether the equipment, operation or conduct ... was reasonable and adequate under the particular circumstances." Rizzuto, 91 N.Y.2d at 351 (emphasis added). To find vicarious liability, a plaintiff must establish, to a jury, that "someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that ... subsequent injury proximately resulted from such negligence." Id. Again, in Misicki v. Caradonna, 12 N.Y.3d 511 (N.Y. 2009), the Court of Appeals held that "t would remain for a jury to decide whether a violation, in fact, occurred; and whether the negligence of some party to, or participant in, the construction project caused plaintiff's injuries." In Yax v. Development Team, Inc., 67 A.D.3d 1003 (2d Dept. 2009), an affidavit was sufficient to raise a triable issue-of-fact as to whether the equipment, operation, or conduct was reasonable and adequate under the particular circumstances.
This consideration is reflected in the Pattern Jury Instruction, PJI 2:216A, which provides:
One should note that the Labor Law 241(6) jury instruction is similar to PJI 2:29, which instructs as to the statutory standard of care as to ordinances and regulations and states:
PJI 2:216A, clearly, holds that a juror must consider whether the rule was violated and if there was a failure to use reasonable care; i.e. negligence.
Recent rulings are contrary to decades of jurisprudence. Going forward, it is imperative that the defense reminds the Court that a violation of an Industrial Code is "some evidence which the jury may consider" and not a basis to award summary judgment. Long, 55 N.Y.2d at 160. Labor Law 241(6) is a vicarious liability statute, not an "absolute liability" statute. Owners and general contractors are, only, required to respond in damages if the plaintiff proves that the subcontractor failed to act reasonably. As articulated by Hon. Lillian Wan, of Supreme Court, Kings County, in Whitted v. One Hudson Yards Owner LLC, 2021 N.Y. Misc. LEXIS 5468 (Sup. Ct., Kings Cnty. 2021), and Andrade v. Port Auth. Of N.Y. & N.J., 2021 N.Y. Misc. LEXIS 6564 (Sup. Ct., Kings Cnty. 2021):
(Emphasis added.)
If defendants fail to remind the Courts of such, Labor Law 241(6) may morph into another Labor Law 240(1).
Footnote
1. Cutaia v. Board of Mgrs. Of Varick St. Condo., 172 A.D.3d 424 (1st Dept. 2019); Quizhpi v. South Queens Boys & Girls Club, Inc., 166 A.D.3d 683 (2d Dept. 2018); Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dept. 2019); Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept. 2019); Wein v. East Side 11th & 28th LLC, 186 A.D.3d 1579 (2d Dept. 2020); Sande v. Trinity Ctr. LLC, 188 A.D.3d 505 (1st Dept. 2020); Favaloro v. Port Auth. of N.Y. & N.J., 191 A.D.3d 524 (1st Dept. 2021); Bain v. 50 W. Dev., LLC, 191 A.D.3d 496 (1st Dept. 2021); Tolk v. 11 W. 42 Realty Inv., L.L.C., 2022 N.Y. App. Div. LEXIS 127 (1st Dept. 2022); Lopiccolo v. Brd. Of Mgrs. For the N.Y. Resource Ctr. Condo., 2019 N.Y. Misc. LEXIS 3117 (Sup. Ct., Kings Cnty. 2019); Rosenblatt v. Briarwood MP LLC, 2020 N.Y. Misc. LEXIS 3096 (Sup. Ct., Kings Cnty. 2020); Talarico v. New York & Presbyt. Hosp., 2019 N.Y. Misc. LEXIS 71 (Sup. Ct., N.Y. Cnty. 2019); Wodz v. City of New York, 2020 N.Y. Misc. LEXIS 9600 (Sup. Ct., N.Y. Cnty. 2020); Miller v. Turner Constr. Co., 2020 N.Y. Misc. LEXIS 9559 (Sup. Ct., N.Y. Cnty. 2020); McCoy v. 43-25 Hunter L.L.C., 2020 N.Y. Misc. LEXIS 3904 (Sup. Ct., N.Y. Cnty. 2020); Gatinho v. East Ramapo Cent. Sch. Dist., 202o N.Y. Misc. LEXIS 18645 (Sup. Ct. Rockland Cnty. 2020). Rivera v. JP Morgan Chase & Co., 2021 N.Y. Misc. LEXIS 6269 (Sup. Ct., N.Y. Cnty. 2021).
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