The New York Court of Appeals last week rendered a very significant decision in O'Brien v. Port Authority that provides a stronger legal basis for defendants in a position to move and defeat the plaintiff's motion for summary judgment on Labor Law 240(1) with an expert affidavit stating that the equipment at the work site was safe and fit for its intended use under industry standards.

The decision extends the court's prior reasoning from Blake v. Neighborhood Housing Services of NY City (2003) and cuts back on the concept of strict liability where plaintiffs claim that certain equipment, such as ladders and stairs, was not suitable for the work simply because an accident occurred or because the equipment could have been supplemented with hoists, stays, etc. Under O'Brien, defendants can more easily raise issues of fact with expert affidavits stating that the equipment provided "proper protection" for purposes of Labor Law 240(1).

The plaintiff in O'Brien was injured when he slipped and fell on an exterior metal staircase or temporary scaffold on his job site that had become wet during a storm. The plaintiff submitted expert testimony that stated the stairs were not Occupational Safety and Health Administration compliant and were worn and slippery from longstanding wear and tear.

In opposition, the defendants submitted their expert's testimony stating that the stairs were in good condition and had adequate anti-slip measures that met industry standards. The defendants' expert further opined that the stairs' tread surface was of adequate size so that a person descending the stairs could avoid contact with the nose of the step.

In reversing the Appellate Division's decision and denying the plaintiff's motion for summary judgment on Labor Law 240(1), the Court of Appeals found questions of fact, emphasizing that the mere fact that the plaintiff fell at a construction site does not necessarily trigger a statutory violation.

Writing for the majority, Chief Judge Janet DiFiore distinguished cases where the equipment "collapses or malfunctions for no apparent reason," which triggers "a presumption that [it] was not good enough to afford proper protection" and establishes liability under Labor Law 240(1), stating:

Here, by contrast, there are questions of fact as to whether the staircase provided adequate protection. As noted above, defendants' expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants' expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff's expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment [*3] on the issue of liability.fn2
Footnote 2: We note that defendants did not preserve for our review, and we thus do not address, the argument that the water was an ordinary slipping or tripping hazard unrelated to the danger that the staircase was designed to protect against (see e.g. Nicometi, 25 NY3d at 98-99).

Judge DiFiore also distinguished Zimmer v. Chemung County Performing Arts (1985), finding that here, the issue is not that no safety devices were provided for the stairs, but rather when the adequacy of the safety devices on the stairs complied with industry standards and, further, whether they were "safety devices" within the meaning of Labor Law 240(1).

Judge Jenny Rivera, writing for the dissent, found that the majority's opinion ignores the legislative intent behind Labor Law 240(1) and permits owners, contracts, and agents to "diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite" (citing Zimmer). Judge Rivera, again relying on Zimmer, emphasized that Labor Law 240(1) imposes strict liability without the consideration of rules and regulations, contracts, or custom and usage.

Read the Court of Appeals' full opinion here.

Overall, this is a very good decision for the defense bar and insurers providing insurance for the construction industry. The key is for defendants to show the equipment was not defective so as to defeat a summary judgment motion. The decision stresses the need for an expert to demonstrate that the equipment or area was safe and adequate.

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