MEMORANDUM FROM

Patrick J. Long

Direct Dial: 716.848.1506

Facsimile: 716.819.4644 

To:                  Hugh M. Russ, III

Date:               March 14, 2006

Subject:          A legislative history of Labor Law § 240(1)

I have reviewed the legislative history prepared by Joan White.  The validity of absolute liability has not been closely examined, except in passing.  Also, I found no case law concerning a constitutional challenge to Labor Law § 240(1).

History.  The first scaffold law was enacted in 1885.  Called “The Act For the Protection of Life and Limb,” it made it a misdemeanor, punishable by a $500 fine or six months in a county jail, to “knowingly or negligently furnish or erect unsuitable and improper scaffolding, hoists, stays, ladders, or other mechanical contrivances as will not give proper protection to the life and limb of any person” employed in the “erection, repairing, altering or painting of any house, building or other structure.”  The ambit of the law included only those persons “employing or directing another to do or perform” labor in the construction business.  This law was amended in 1891, by adding corporations as “persons” liable for violations of the statute.  The amendment also included specific directions concerning the strength and height of safety rails for scaffolding in excess of 20 feet.

The law was amended again in 1897.  With this amendment, the element of negligence was removed from the law, as was the criminal penalty.  This articulation closely matches the current law:

§ 18.  Scaffolding for use of employes [sic]. --  A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.

Scaffolding or staging swung or suspended from an overhead support, more than twenty feet from the ground or floor, shall have a safety rail of wood, properly bolted, secured and braced, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.

An act in relation to labor, constituting Chapter 32 of the General Laws, Chapter 415 (1897).  The law was again amended in 1921 to add further devices which must provide protection to laborers from elevation-related risks.  Specifically, the amendment added “slings, hangers, blocks, pulleys, braces, irons, ropes and other mechanical contrivances.”  An amendment in 1930 added demolition to the protection of the law.

Beginning in 1962, the courts, relying on the language in a companion law, Labor Law § 241, came to require actual direction or control by the owner or contractor to impose § 241 liability.  This movement was checked by the Legislature in 1969.  The Legislature acted to fix absolute liability on owners and contractors:

In calling a halt to its earlier backtracking, the Legislature minced no words.  Referring expressly to both Section 240 and Section 241, its stated purpose in redrafting these statutes was to fix “ultimate responsibility for safety practices . . . where such responsibility actually belongs, on the owner and general contractor” (N.Y. Legis. Ann., 1969, p. 407). . . .  Prior to 1969, [Labor Law § 240(1)] placed liability for its violation upon “a person employing or directing another to perform labor”; it now unqualifiedly places liability upon “all contractors and owners and their agents”, duplicating the language of Section 241.  Under both amended sections, an owner no longer need be the employer of the worker or one directing his labor in order to be subject to liability.  Furthermore, Section 240 no longer contains any provision spelling out responsibility of subcontractors for compliance with the duties that section imposes; as Judge Cook, writing in Allen, pointed out, the 1969 deletion of such a clause from Section 241 was a significant factor in the revitalization of that statute.  If, with all that, an owner’s liability had been intended to continue to be conditioned on control and supervision, it would have to be said that the Legislature, for all its vaunted labors and professions, had engaged in but an empty charade.  There is no basis for such conclusion.

Haimes v. New York Telephone Company, 46 N.Y.2d 132, 136 (1978).

The last significant amendment to Labor Law § 240(1) occurred in 1980, when the exception for “owners of one and two family dwellings who contract for but do not direct or control the work,” was added to protect homeowners who hire contractors to build their homes.  This amendment arose after the seminal case, Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, wherein a married couple was found strictly liable for the death of a plumbing subcontractor killed in a trench cave in.  In its notes to the 1980 amendment, the Law Revision Commission noted:

The commission believes that while the rule of strict liability has a salutary effect in promoting responsibility among those engaged in the business of construction and repair, and to owners of buildings other than one and two family dwellings, it should not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability.

1980 Recommendations of the Law Review Commission, Labor Law 240(1), [1980].

PJL/atm