Labor Law §240 Versus §241(6): The Summary Judgment Issue
The issue is deceptively simple. Hardly a week passes in which the Appellate Division does not approve the grant of summary judgment to the plaintiff under Labor Law §240, the so-called "scaffold statute." But can summary judgment ever be appropriately awarded to the plaintiff pursuant to Labor Law §241(6)?
As Justice Jack M. Battaglia recently noted in his exhaustive analysis in Reynoso v. Bovis Lend Lease, LMB, the arguments, and authorities, go both ways.1
Under the governing Court of Appeals decisions, the plaintiff who asserts a cause of action under Labor Law §241(6) must prove that, (i) someone (not necessarily the defendant) negligently violated a so-called "concrete" specification of Industrial Code 23, and, (ii) such violation was a proximate cause of the subject accident.2
Although responsibility under the statute is "non-delegable" in the sense that the "owners and contractors" within the scope of the statute are responsible irrespective of whether they were personally negligent or in control of the area in issue,3 liability is not "absolute" and may be reduced by virtue of the plaintiff's or decedent's comparative negligence.4
Within this context, all agree that the §241(6) plaintiff should not be awarded summary judgment if the facts or predicate regulatory violations are in dispute. Likewise, the plaintiff should not be awarded summary judgment if there is a real dispute whether the regulatory violation was a substantial factor in causing the subject accident.5 But what if it is absolutely clear that someone's negligent violation of a "concrete" specification was a proximate cause of the accident? What then?
At common law, violation of a mere regulation—as opposed to violation of a statutory standard of care—is merely evidence of negligence, not negligence per se.6 Here, the predicate standards of Industrial Code 23 are, of course, merely state regulations, not statutes. But, on the other hand, a state statute, Labor Law §241, mandates compliance with those regulations.
So, is summary judgment inappropriate even when the violation is indisputable, on the ground that such is merely evidence of negligence? Or does the statutory directive to comply with the regulations elevate their importance, rendering the violation negligence per se (as with a statutory standard of care)?
Until very recently, there was an upstate/downstate divide—which may or may not still exist.
The 'Downstate' Rule
Downstate, the First and Second Departments have routinely affirmed or directed summary judgment under Labor Law §241(6), albeit without, to my knowledge, ever addressing whether such is inconsistent with the tort rules generally applied to violation of regulatory standards.7
For example, in Marrero v. 2075 Holding Co.,8 where plaintiff testified that the plywood planks that constituted the flooring "buckled and shifted," which in turn caused two 500-pound steel beams to fall on plaintiff's left leg, the Appellate Division for the First Department ruled that "the motion court improperly denied plaintiff's motion for summary judgment based on violations of 12 NYCRR 23-2.1(a)(2)."9 Likewise, in Cueva v. 373 Wythe Realty,10 where "the section of roof across which [plaintiff] was walking collapsed," the Appellate Division for the Second Department tersely noted that such occurrence "demonstrated prima facie that [plaintiff] was not provided with 'sound flooring' in violation of [12 NYCRR 23-3.3(l)]" and "[t]here being no triable issue of fact raised in opposition to the plaintiffs' motion for summary judgment…the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §241(6)…"11 In neither case did the court in any way question whether summary judgment could be awarded; the sole issue was whether summary judgment should be awarded within the facts of the case.
The First Department even held that the plaintiff was entitled to summary judgment under Labor Law §241(6) in a case in which triable issues precluded summary disposition of the plaintiff's Labor Law §240(1) claim.12
Yet, the Second Department has also, on occasion, deemed summary judgment inappropriate on the stated ground that the predicate violation was merely evidence of negligence.13 In Belastro, for instance, where plaintiff was "working at the ground level" when "he was struck on the head by a piece of wood which allegedly fell or was thrown from the roof," the Second Department ruled that 12 NYCRR 23-1.7(a)(1) was "applicable here."14 Yet, it then went on to hold that "while the violation of an Industrial Code provision 'constitute[s] some evidence of negligence,' it is for a jury to determine 'whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.'"15