The never ending ways New York’s Labor Law entangles owners and general contractor are legendary. In DeRose v. Bloomingdale’s Inc., the Appellate Division decided an appeal that included a supervisor’s colorful language ordering plaintiff to complete demolition work ASAP without the proper and adequate safety device. The supervisor’s orders to perform demolition work ASAP without the proper safety device led to the finding of absolute liability under the Labor Law.

In DeRose, plaintiff wanted to stand on an available Baker scaffold while dismantling the wall. However, doing so would have necessitated walking with scaffold through Bloomingdale’s during business hours. While not disputing plaintiff’s assertions that a Baker scaffold would have been the adequate safety device, his supervisor mandated, in much more colorful language than will be used here, that plaintiff not roll the scaffold through the store while customers were present and should instead use the ladders already present in the section being demolished. Plaintiff ultimately used the one ladder available to perform his work, a “rickety” old, wooden A-frame ladder. Needless to say, plaintiff ended up falling and injuring himself.

Labor Law 240[1] requires building owners and contractors to provide scaffolding, ladders, and other devices, to provide proper protection to workers. Defendant’s asserted defense that plaintiff was the sole proximate cause of his injury because he refused to ignore either the supervisor’s orders to not bring the Baker scaffold or the supervisor’s orders that this project be worked on ASAP failed as the Labor Law protects workers’ safety and the statute does not ask laborers to put their jobs on the line by disobeying a superior’s order.

To help avoid the absolute liability of Labor Law like the defendants in DeRose, it would be beneficial for general contractors and building owners to instruct and continually remind the site supervisor(s) that safety must come first. And the choice of language – colorful or not – is yours.

Thanks to Bryan Lipsky for his contribution to this post. If you have any questions, please email Paul at .