New York courts apply a strict liability standard to New York Labor Law § 240(1), which was designed to protect workers who work on elevated risks.  Because of the strict liability standard, attorneys for injured parties continue to try to expand the type of cases that fall within the statute’s scope, but the statute applies only to workers  engaged in the “erection, demolition, repairing, or altering of a building or structure.”

In Lannon v 356 W. 44th St. Rest., Inc., the plaintiff was injured when he fell from a two-story building while installing flag holders for St. Patrick’s Day decorations on the exterior of the building facade. The plaintiff sued the building owner alleging claims under Labor Law §240 (1). The owners were awarded summary judgment on the §240 (1) claim as the plaintiff was not engaged in a protected activity under the statute at the time of his accident.

On appeal, the Appellate Division, First Department, focused on the plaintiff’s testimony that in order to install the flag holder brackets, he marked the location of the screws, drilled holes for each bracket, placed plastic fasteners in the holes, and attached each flag holder with screws to hold it in place. Based upon the plaintiff’s own testimony, the First Department found that this work did not constitute “altering” under the statute since it did not result in a “significant physical change” to the building’s structure. The Court also found that the cosmetic, nonstructural nature of plaintiff’s work was also reflected by the temporary placement of the flags to enhance the building’s exterior appearance during the St. Patrick’s Day celebration, after which the flags were removed. The Court agreed with the defendants and upheld the trial court’s dismissal of the claims under § 240 (1).

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.