Court of Appeals weighs on Labor Law § 240: Effects of decision will be felt far and wide - by Steven Glassberg

Once again, the Court of Appeals has weighed in on Labor Law § 240. This time, they clarified, and arguably expanded what it means to alter a structure within the meaning of Labor law 240(1). Labor Law § 240(1) requires the furnishing and erection of scaffolding and other safety devices for the protection of workers engaged in the “erection, demolition, repairing, altering, painting, or pointing of a building or structure” other than a one or two family home. In Saint v Syracuse Supply Co., 25 NY3d 117 (2015), a worker was engaged in the installation and removal of a billboard advertisement. The billboard was elevated at a height of 59 feet above the ground. There are six catwalks used by workers when installing and removing advertisements, two located on the exterior of the billboard and four are located on the interior. The interior catwalks are located between the two visible sides approximately ten feet apart vertically, an upper and a lower interior catwalk on each side. The catwalks are equipped with safety cables but not guardrails. On the day the plaintiff was injured, the installation of the new billboard advertisement required the workers to install plywood extensions to the existing billboard structure in order to accommodate the shape of the new advertisement being installed. The extensions were fabricated beforehand and were transported to the billboard on the day of installation. A crane was used to raise the extensions onto the catwalks. The advertisements are made of vinyl which is attached to the billboard structure. During the course of the installation the Plaintiff detached his lanyard from the catwalk’s safety cable so he could get around one of the other crew members. Before he was able to reattach his lanyard to the safety cable, a gust of wind caused the vinyl advertisement, which was not yet secured to the billboard structure, to strike the Plaintiff in the chest, knocking him from an upper catwalk onto a lower catwalk, approximately 10 feet below. As a result of the fall, the Plaintiff suffered a dislocated shoulder and several herniated discs in his back. He was subsequently terminated from his employment. Plaintiff sued the defendant, Syracuse Supply Company, owner of the property where the billboard is located, alleging violations of Labor Law §§?240 (1), (2) and 241 (6). Defendant moved for summary judgment to dismiss plaintiffs’ amended complaint in its entirety, asserting that plaintiff Joseph Saint was not engaged in a covered activity under the Labor Law. Plaintiffs cross-moved for partial summary judgment on their Labor Law §§?240 (1), (2) and 241 (6) claims. Supreme court denied both motions, concluding that Labor Law §§?240 and 241 applied to plaintiffs’ claims but that an issue of fact existed as to whether plaintiff was the sole proximate cause of his injuries for failure to reconnect his lanyard. Only defendant appealed the order. The Appellate Division granted summary judgment to the Defendant and dismissed the claims of the Plaintiff. The Appellate Division concluded that the plaintiff’s work on the billboard was not altering for purposes of Labor Law §?240 and was not construction work but was maintenance. The Court of Appeals reversed the Appellate Division. The Court of Appeals stated that the work performed by the Plaintiff was covered under Labor Law §?240. Firstly, the court determined that the specific activity at the moment of activity is not determinative of whether the work is covered under Labor Law §?240. The totality of the activities must be considered. Preparatory work is similarly covered under Labor Law §?240. Secondly, the court determined that the term “altering” in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure.” “Routine maintenance” and “decorative modifications” are not protected under Labor Law §?240. The court determined that because plaintiff’s job was to “change to the billboard’s size” and required “an adjustment of the frame to accommodate the unique shape of the advertisement” being installed on the billboard, he was engaged in “altering” the billboard for purposes of Labor Law §?240. Lastly, the court determined that an alteration does not have to be permanent in nature to be considered an alteration under Labor Law §?240. The change to the physical structure is what matters, not its permanence of the ease with which it can be returned to its original state. The effects of this decision will likely be felt far and wide, with more plaintiffs being able to successfully claim they were altering a structure within the meaning of Labor Law §?240 and not simply performing routine maintenance on a structure. Steven Glassberg is the founder of Glassberg & Associates, LLC, New York, N.Y. and Port Washington, N.Y.