In a rare 4-3 decision within the Labor Law context, the New York Court of Appeals in Affri v. Basch recently held that the homeowner's exemption to Labor Law secs. 240(1) and 241(6) applied to the defendants homeowners. The defendants hired the plaintiff, a neighbor, to perform renovations to an apartment within their home. The work included the installation of appliances. The plaintiff fell from a ladder while installing a vent on the roof and sustained injuries.
The focus of the appeal was whether the defendants' participation in the renovation was sufficient enough to take them out of the exemption's protection. The evidence on summary judgment demonstrated that the defendants instructed the plaintiff to place an appliance vent on the roof and not in a window. Was this enough to constitute direction and control?
The Majority held that the defendants merely gave instruction on aesthetics, noting that they "did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion." The Court also noted that the defendants did not provide the plaintiff with any equipment or materials, and they were not present at the worksite when the plaintiff undertook the venting work.
In his dissent, Chief Judge Lippman (with Judges Ciparick and Jones joining), stated that the plaintiff, at the very least, raised an issue of fact as to whether the defendants were directing and controlling his work. Judge Lippman noted that the evidence could be viewed that the defendants' conduct was more extensive than expected of the typical homeowners renovating their homes. He pointed to several instructions about how the defendants wanted the work to be conducted.
The 4-3 split on a Labor Law question is out-of-the-ordinary. Is it a sign of things to come under Chief Judge Lippman's tenure?
Wait a minute . . . doesn't New York's Scaffold Law (Labor Law sec. 240(1)) apply when there is a falling worker or when the worker is hit by an object improperly hoisted or secured? No way says the New York Court of Appeals in its recent decision, Runner v. New York Stock Exchange, Inc. Okay . . .doesn't the gravity-related injury have to have more than a de minimis height involved? Nope says the Court.
In Runner, the plaintiff injured both of his hands while installing an Unterruptible Power System. The plaintiff and his co-workers were attempting move a large reel of wire, which weighed approximately 800 pounds, down a set of about 4 stairs. To prevent the reel from rolling down the flight and causing damage, the workers were instructed to tie one end of a 10-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel.
The plaintiff and two workers held the loose end of the rope while two other worker began to push the reel down the stairs. As the reel descended, it pulled the plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The plaintiff was drawn horizontally in the bar, injuring his hands as they jammed their hands against the bar.
The case came to the Court of Appeals via a certified question of the United States Court of Appeals for the Second Circuit. The Court of Appeals rejected the defendant's argument that sec. 240(1) did not apply because the occurrence did not involve the traversal of an elevation differential either by the plaintiff or an object that hit him. The defendant was essentially pointing to prior case law -- e.g., Narducci v. Manhasset Bay -- for the proposition that gravity must operate directly upon either the plaintiff or upon an object falling upon the plaintiff if there is to be sec. 240(1) liability. From analyzing this line of case law, the defendant had a point.
Not so, the Court held. The Court recognized that prior case law recognized the two scenarios where sec. 240(1) applied, but noted that the Court's reference to those scenarios was not exhaustive. It essentially wedged this analysis into a gap in the holding in Narducci. The questions becomes: Did we know that there were gaps in Narducci and similar case law?
The Court noted that the key to sec. 240(1) liability was shielding the injured worker from harm directly flowing from the application of the force of gravity to an object or person.
The Court held that the relevant inquiry in a falling object case is whether the harm flows directly from the application of the force of gravity to the object; it does not depend upon whether the object has hit the worker.
What about the elevation level being de minimis? The Court noted that, even though the accident concerned the height differential of 4 steps, the elevation differential here cannot be viewed as de minimis. The Court noted the reel's weight and amount of force it was capable of generating to reject the de minimis elevation differential claim.
Based on this holding, the elevation differential analysis now seems to include the character of the object that fell -- i.e., weight, force capability, and any other factor that would pose a danger to the injured worker.
Perhaps the most interesting aspects of this holding are (1) it might signal a shift in the Court's view toward sec. 240(1) actions (see also Affri v. Basch [discussed in a future post], and (2) the impact it will have at the trial and intermediate appellate level.