Proof that New York’s Labor Law is Broken

Project owners, contractors, subcontractors and insurers would all agree – the New York Labor Law is an unreasonable transfer of safety risk away from those who are most responsible for safety. Only the plaintiffs’ bar would disagree. We now have an appellate decision that reinforces the absurdity of the law.

“Plaintiff, a self-employed contractor, was hired . . . to install surveillance cameras in the ceiling of an office . . .” And then: “During the installation, plaintiff fell from his ladder” (which, per the decision, had been extended to 10 feet).

The self-employed contractor then sued the commercial tenant and the building owner under the NY Labor Law, arguing that they – not he, the worker who decided how he was going to carry out his mission – were liable because the ladder he had placed and was using somehow slipped. The tenant and building owner naturally noted that “plaintiff's own behavior was the sole proximate cause of his injuries.” Because it was.

But under the NY Labor Law, the self-employed contractor plaintiff’s affirmative motion for summary judgment on the issue of liability – i.e., liability of the tenant and owner to the contractor whose actions resulted in the accident – was allowed. The tenant and owner were liable to the contractor as a matter of law, as they (the tenant and owner) had failed to either secure the contractor’s ladder or had failed to hire someone else to hold the ladder for the self-employed contractor. This is absurd.

Is there anyone who reasonably thinks that a self-employed contractor, who (a) brings his own ladder to the job, (b) decides how to place that ladder, (c) decides when and if he needs to secure the ladder in some manner for his own safety, and (d) decides whether or not the condition is safe for him to do his work, should be able to sue and recover from the person/company who hired him to carry out his work in a safe manner?

Other facts in the decision don’t make it any better. The worker –

• “ascended and descended the ladder seven to nine times” prior to the accident.
• “did not recall having any concerns about the safety of the ladder.”
• “agreed [that the rubber feet on the ladder] provided sufficient grip or traction on the concrete floor of the office.”

No one else witnessed the accident. Thus, the tenant and building owner were powerless to “present a triable issue of fact.”

Safety on construction projects is paramount; no reasonable person disagrees. Too many workers are injured or killed because of unsafe conditions. But responsibility for safety should rest with those who decide how the work is to be carried out. A law that makes building owners responsible for safety risks that arise from decisions made by others – others who should bear the primary responsibility for making sure that work conditions are safe – does not properly allocate this responsibility. This case simply demonstrates that the NY law improperly protects some workers from their own errors.

The case is Barnhardt v Richard G. Rosetti, LLC, 2023 N.Y. App. Div. LEXIS 2588 (App. Div. 3^rd Dept., May 11, 2023).