The New York Court of Appeals recently reiterated that the fact of a workplace fall alone is insufficient to support a summary judgment under Labor Law § 240(1). In O’Brien v. Port Authority, the plaintiff, O’Brien, was injured while working for a subcontractor at the 1 World Trade Center construction site. He brought suit against the Port Authority and the general contractor.
On the date of his fall, O’Brien had been working at ground level during periodic rain. When he headed down one level to retrieve his raincoat from his shanty, he slipped off the tread of the top step of a temporary exterior metal staircase (also described as a temporary scaffold) and fell down the stairs, sustaining injuries. The stairs were wet due to exposure to the elements. In addition, O’Brien testified that the stairs were “steep, slippery and smooth on the edges.” He also stated that his right hand was on the handrail, but he lost his grip because the handrail was also wet. Plaintiff submitted an affidavit from a co-worker that stated that the stairs were slippery when wet and the slippery nature of the stairs was common knowledge at the construction site.
Plaintiff also submitted an expert affidavit in support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims. The expert opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing. The expert claimed that the stairs showed signs of longstanding wear and tear and lack of adequate anti-slip protection.
In opposition and in support of defendants’ cross-motion, their expert opined the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” The defense expert observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. The defense expert also disputed the staircase was smaller, narrower or steeper than usual.
The trial court denied all parties’ motions on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there was a violation of Industrial Code 12 NYCRR § 23-1.7 (d), which states that “Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”
On appeal, with one judge dissenting, the First Department modified the order by granting plaintiff’s motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department noted the conflicting expert opinions as to the adequacy and safety of the staircase, but nonetheless held that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.
The Court of Appeals considered only the Labor Law § 240(1) claim, finding that the First Department improperly found the stairs inadequate on the sole basis that the plaintiff fell – again with one justice dissenting. The majority of the Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason. The Court found that there were questions of fact as to whether the staircase provided adequate protection – particularly with respect to the conflicting expert opinions. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact.
Justice Rivera’s lengthy dissent focused on the majority’s reliance on the “industry standard” as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to set their own standard of care for workers’ protections, thereby diminishing their statutory obligations.
While the argument that a plaintiff was the sole proximate cause of an accident must be supported by an expert affidavit, the practitioner must ensure that the basis of any expert’s findings is valid, in order to demonstrate a question of fact requiring the issue to be decided by a jury. Despite the dissent, an opinion grounded on “industry standards” is a valid basis for an expert opinion.
Thanks to Vincent Terrasi for his contribution.