The Occupational Safety and Health Administration (OSHA) reports that on average falls at construction sites kill between 150 and 200 workers and injure more than 100,000 workers every year. Ladders accidents and scaffolding accidents are two of the most common.  Working at elevated heights is obviously a very dangerous job. It is so dangerous in fact, that beyond standard OSHA regulations there is a specific law governing safety regulations and employer liability for scaffolding and ladder related accidents.

The Scaffolding Law: NY CLS Labor § 240

Under New York Consolidated Laws Service (NY CLS) Labor § 240 or the “Scaffolding Law” an owner or general contractor of a building or structure that is not a one- or two-family dwelling must give proper protection and safety equipment, such as properly securing a ladder to make sure it stable and providing a safety belt, to an employee who is doing work on the building or structure if the employee is going to be on equipment, such as a ladder or scaffolding, that is at elevated heights. However, § 240 does not require an absolute duty on owners and contractors. § 240 does not protect against injuries sustained by workers who have adequate and safe equipment available to them but refuse to use it. Smith v. Hooker Chem. & Plastics Corp., 70 N.Y.2d 994, 526 N.Y.S.2d 425, 521 N.E.2d 431 (1988) § 240 was also enacted to protects employees working on the ground from the danger of falling objects. Carmody v. ADM Milling Co., 665 F. Supp. 147 (N.D.N.Y. 1987). There is however a distinction in § 240 between an employee at an elevated height and an employee on the ground. § 240 protects employees at even a fairly small elevation. See Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 624 N.Y.S.2d 110 (App. Div. 1995) stating that the owner had the duty of providing a device to enable plaintiff to work safely on a ladder, even though the employee was only on the second or third step of a six-foot ladder. However, when an employee is on the ground and an object falls on him the height cannot be miniscule. See Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 609 N.Y.S.2d 322 (App. Div. 1994) stating that an object falling from four feet was not what NY CLS Labor § 240 was intended to protect against.

NY CLS Labor § 240 makes clear that an owner and general contractor are strictly liable to any worker even if the owner or general contractor had no direction or control over the work being performed. The reasoning behind this according to Judge Fuchsberg was that the legislature decided that “safety standards would be achieved by placing primary and inescapable responsibility on owners and general contractors rather than on their subcontractors who, often occupying an inferior economic position, may more readily shortcut on safety unless those with superior interests compel them to protect themselves”. Haimes v. N.Y. Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601 (1978). The legislator also made it clear that owners must provide a “safe place to work for all workmen on the job” and since an independent contractor is a workman, he is thus covered under § 240. Id. § 240 is an extension of NY CLS Labor § 200 which says an owner must provide reasonable protection to the lives, health and safety of all persons employed or lawfully visiting an establishment.

The exact language of NY CLS Labor § 240 is as follows:

240. Scaffolding and other devices for use of employees

1. All contractors and owners and their agents, except owners of one and two family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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.
2. Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead support or erected with stationary supports, except scaffolding wholly within the interior of a building and covering the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be necessary for the delivery of materials. Such scaffolding or staging shall be so fastened as to prevent it from swaying from the building or structure.

An owner of a one- or two-family dwelling can still be held liable

Owners of one- and two-family dwellings will still be liable in any situation where they direct or control the work, or where negligence may otherwise be proved against them. NY CLS Labor § 240 merely removes the burden of strict liability from owners of one- and two-family dwellings when they have no involvement in carrying out of the work. Haimes,46 N.Y.2d. § 240 was amended in 1980 to carve out this exemption for owners of one- and two-family dwellings.

However, one- or two-family dwellings used for commercial purposes are not entitled to the statutory exemption made in 1980. Van Amerogen v. Donnini, 78 N.Y.2d 880, 573 N.Y.S.2d 443, 577 N.E.2d 1035 (1991). Since the exemption was put in place there have been many cases dealing with if a certain situation constitutes a commercial purpose of a one- and two-family dwelling or not. It is obvious if an owner is using his one- or two-family house purely for commercial purposes, then he will not benefit from the 1980 exemption. Zangiacomi v. Hood, 193 A.D.2d 188, 603 N.Y.S.2d 31 (App. Div. 1993). But, if there is both residential and commercial uses on a one- or two-family house, then there becomes a question of if a home owner would qualify for the strict liability exemption. In these cases, the purpose of the work being done becomes very important. Cannon v. Putnam, 76 N.Y.2d 644, 563 N.Y.S.2d 16, 564 N.E.2d 626 (1990). For instance, a homeowner who hires someone to paint his own living-room ceiling should be covered under the statutory exemption from strict liability even if he also maintains a business on the property. Id. However, if a home owner’s purpose in making renovations was to prepare the house for commercial rental then he would not be exempt from strict liability. Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117 (1992).

Steps to take if you are injured in a ladder or scaffolding accident

If you are seriously injured in a ladder or scaffolding accident you should:

• Report the incident and your injuries to your employer as soon as possible
• Seek medical attention for your injuries.
• Take photos where the accident occurred, get a copy of the injury report, and keep a record of all the evidence that contributed to your injuries.
• Try to get the contact information of anyone who witnessed the event.
• Contact an experienced personal injury attorney.