Articles

Statute vs. Ordinance: A Review of Judicial Analysis of Labor Law Sec. 241(6)

New York, N.Y. (June 2022) - In recent years, there has been a concerning development regarding judicial analysis of Labor Law § 241(6). Specifically, Courts have – incorrectly – applied a somewhat “absolute liability” interpretation to Labor Law § 241(6). For example, in Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept. 2019), the Court ruled that:

“plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 241(6) cause of action by showing that there were violations of certain relevant Industrial Code sections, and that those violations were a proximate cause of his injuries.”

This ruling suggests that, if evidence shows a violation, and said violation proximately caused the incident, then a party is entitled to summary judgment as to liability. In other words, the violation of an Industrial Code, which imposes a specific duty, constitutes negligence per se. One should note that this incorrect analysis is far from an isolated incident in recent years. [1] However, Labor Law § 241(6) is not an “absolute liability” statute, like Labor Law § 240(1), and these recent rulings are contrary to decades of jurisprudence.

New York Courts have long recognized a distinction between state statutes and local ordinances or administrative rules and regulations. As a rule, violation of a state statute that imposes a specific duty constitutes negligence per se or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence. Elliott v. City of New York, 95 N.Y.2d 730 (N.Y. 2001); See also, Fluker v. Ziegele Brewing Co., 201 N.Y. 40 (N.Y. 1911); Amberg v. Kinley, 214 N.Y. 531 (N.Y. 1915); Schumer v. Caplin, 241 N.Y. 346 (N.Y. 1925); Teller v. Prospect Height Hospital, 280 N.Y. 456 (N.Y. 1939); Major v. Waverly & Ogden, Inc., 7 N.Y.2d 332 (N.Y. 1960).

The Constitution of the State of New York commits to the State Legislature alone the power to enact a statute. And a statute, once passed, remains fixed until repealed or amended. The legislature can confer upon a commission, officer, board, or municipality the power to make rules and ordinances governing the administration of their respective affairs. For example, in Labor Law 241(6), the “commissioner may make rules [i.e., Industrial Code] to carry into effect the provisions of this subdivision, and owners and contractors … shall comply therewith.” However, the rules promulgated by a board or commission, unlike a statute, may be suspended, modified, or varied, depending upon conditions or the “caprice of any officer, board or individual.” Based upon these considerations, New York Courts have long and repeatedly held that a violation of an ordinance or code, if it has some connection with the injuries complained of, is evidence, more or less cogent, of negligence, which the jury may consider along with all other facts proved.

The violation of an Industrial Code provision, alone, cannot give rise to liability, under Labor Law § 241(6), without regard to negligence. In Monroe v. City of New York, 67 A.D.2d 89 (2d Dept. 1979), the Second Department held that subdivision 6 of Section 241 of the Labor Law imposes a nondelegable duty upon owners and contractors to vicariously respond in damages for injuries sustained due to the negligence of contractors or subcontractors. In Long v. Forest-Fehlhaber, 55 N.Y.2d 154 (N.Y. 1982), the New York Court of Appeals held that proof of a violation is “merely some evidence which the jury may consider on the question of negligence.” In O’Leary v. Raymond Le Chase, Inc., 125 A.D.2d 991 (4th Dept. 1986), the Fourth Department held that a judicial instruction that a defendant “had a nondelegable duty to provide a safe workplace in accordance with the statutory requirement irrespective of its control and supervision” was improper. A jury could have inferred from the Court’s instruction that breach of a regulation promulgated pursuant to a statute was tantamount to a violation of the statute. Although the duty imposed by Labor Law § 241(6) is nondelegable, breach of a regulation promulgated under that statute is only some evidence of negligence and instructing a jury that breach of a regulation promulgated under Labor Law § 241(6) creates liability constitutes error. Further, in Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (N.Y. 1998), the Court of Appeals held:

“although this Court has consistently rejected the notion that a violation of section 241(6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we have repeatedly recognized that section 241(6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party’s negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault.”

(Emphasis added.)

“A violation of [an Industrial Code], while not conclusive on the question of negligence, would thus constitute some evidence of negligence and thereby reserved, for resolution by a jury, the issue of whether the equipment, operation or conduct … was reasonable and adequate under the particular circumstances.” Rizzuto, 91 N.Y.2d at 351 (emphasis added). To find vicarious liability, a plaintiff must establish, to a jury, that “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that … subsequent injury proximately resulted from such negligence.” Id. Again, in Misicki v. Caradonna, 12 N.Y.3d 511 (N.Y. 2009), the Court of Appeals held that “t would remain for a jury to decide whether a violation, in fact, occurred; and whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injuries.” In Yax v. Development Team, Inc., 67 A.D.3d 1003 (2d Dept. 2009), an affidavit was sufficient to raise a triable issue-of-fact as to whether the equipment, operation, or conduct was reasonable and adequate under the particular circumstances.

This consideration is reflected in the Pattern Jury Instruction, PJI 2:216A, which provides:

“In this case, plaintiff claims that AB, the owner, is liable to (him, her) for (his, her) injury because of the failure of CD (contractor, subcontractor) to use reasonable care. The only evidence of CD’s claimed failure in connection with the liability of AB to plaintiff, is evidence relating to the claimed violation of Rule ____ [state applicable Rule] by CD. Plaintiff claims that the Rule was violated because [state plaintiff’s contentions]. Violation of this rule by CD (contractor, subcontractor) would constitute some evidence of CD’s failure to use reasonable care. AB denies that this Rule was violated or that CD failed to use reasonable care [State owner’s contentions.]

In deciding whether AB, the owner, is liable to plaintiff because of the claimed failure of CD (contractor, subcontractor) to use reasonable care, you must consider all of the evidence submitted in connection with the charged violation of Rule [state Rule number]. If you find that there was a violation of Rule [state Rule number] and that such violation constituted a failure to use reasonable care and that the failure to use reasonable care was a substantial factor causing plaintiff’s injuries, you will find for plaintiff against defendant AB [add where appropriate:] (on this issue). If you find that CD (contractor, subcontractor) did not violate Rule [state Rule number], or that even though there was a violation it did not constitute a failure to use reasonable care, or, if there was a failure to use reasonable care, it was not a substantial factor in causing plaintiff’s injuries, you will find for AB [add where appropriate:] (on this issue).”

(Emphasis added.)

One should note that the Labor Law 241(6) jury instruction is similar to PJI 2:29, which instructs as to the statutory standard of care as to ordinances and regulations and states:

“Plaintiff claims that the defendant violated a (city ordinance, regulation). If you find that the defendant violated the (ordinance, regulation), you may consider the violation as some evidence of negligence, along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the injury [in bifurcated trial, substitute, accident or occurrence].

PJI 2:216A, clearly, holds that a juror must consider whether the rule was violated and if there was a failure to use reasonable care; i.e. negligence.

Recent rulings are contrary to decades of jurisprudence. Going forward, it is imperative that the defense reminds the Court that a violation of an Industrial Code is “some evidence which the jury may consider” and not a basis to award summary judgment. Long, 55 N.Y.2d at 160. Labor Law 241(6) is a vicarious liability statute, not an “absolute liability” statute. Owners and general contractors are, only, required to respond in damages if the plaintiff proves that the subcontractor failed to act reasonably. As articulated by Hon. Lillian Wan, of Supreme Court, Kings County, in Whitted v. One Hudson Yards Owner LLC, 2021 N.Y. Misc. LEXIS 5468 (Sup. Ct., Kings Cnty. 2021), and Andrade v. Port Auth. Of N.Y. & N.J., 2021 N.Y. Misc. LEXIS 6564 (Sup. Ct., Kings Cnty. 2021):

“However, even if a plaintiff establishes as a matter of law that defendant violated a concrete specification of the Industrial Code, granting summary judgment on that claim is not appropriate. In Rizzuto v. L.A. Wenger Contr. Co. …, the Court of Appeals held that a violation of the Industrial Code is not conclusive with respect to defendant’s liability, and merely constitutes “some evidence of negligence and thereby reserves[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.”

(Emphasis added.)

If defendants fail to remind the Courts of such, Labor Law 241(6) may morph into another Labor Law 240(1).

[1] Cutaia v. Board of Mgrs. Of Varick St. Condo., 172 A.D.3d 424 (1st Dept. 2019); Quizhpi v. South Queens Boys & Girls Club, Inc., 166 A.D.3d 683 (2d Dept. 2018); Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dept. 2019); Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept. 2019); Wein v. East Side 11th & 28th LLC, 186 A.D.3d 1579 (2d Dept. 2020); Sande v. Trinity Ctr. LLC, 188 A.D.3d 505 (1st Dept. 2020); Favaloro v. Port Auth. of N.Y. & N.J., 191 A.D.3d 524 (1st Dept. 2021); Bain v. 50 W. Dev., LLC, 191 A.D.3d 496 (1st Dept. 2021); Tolk v. 11 W. 42 Realty Inv., L.L.C., 2022 N.Y. App. Div. LEXIS 127 (1st Dept. 2022); Lopiccolo v. Brd. Of Mgrs. For the N.Y. Resource Ctr. Condo., 2019 N.Y. Misc. LEXIS 3117 (Sup. Ct., Kings Cnty. 2019); Rosenblatt v. Briarwood MP LLC, 2020 N.Y. Misc. LEXIS 3096 (Sup. Ct., Kings Cnty. 2020); Talarico v. New York & Presbyt. Hosp., 2019 N.Y. Misc. LEXIS 71 (Sup. Ct., N.Y. Cnty. 2019); Wodz v. City of New York, 2020 N.Y. Misc. LEXIS 9600 (Sup. Ct., N.Y. Cnty. 2020); Miller v. Turner Constr. Co., 2020 N.Y. Misc. LEXIS 9559 (Sup. Ct., N.Y. Cnty. 2020); McCoy v. 43-25 Hunter L.L.C., 2020 N.Y. Misc. LEXIS 3904 (Sup. Ct., N.Y. Cnty. 2020); Gatinho v. East Ramapo Cent. Sch. Dist., 202o N.Y. Misc. LEXIS 18645 (Sup. Ct. Rockland Cnty. 2020). Rivera v. JP Morgan Chase & Co., 2021 N.Y. Misc. LEXIS 6269 (Sup. Ct., N.Y. Cnty. 2021).

Author:

Frederick McRoberts, Partner, New York

Related Practices


Related Attorneys

Find an Attorney

Each of the firm's offices include partners, associates and a professional staff dedicated to meeting the challenge of providing the firm's clients with extraordinary service.