According to New York’s Scaffold law (Labor Law § 240(1)), contractors and owners engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” must provide “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” Construction attorneys have long believed that this law automatically imposes strict liability on contractors and owners who have failed to provide proper safety measures. However, recent case law may shed some new light on New York’s Scaffolding Law.

In O’Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27 (N.Y. Mar. 30, 2017), a construction worker was injured when he slipped down the stairs of a temporary scaffold while working on a construction site. The worker sued his employer and the property owner and the parties produced conflicting expert testimony regarding the adequacy of the temporary staircases to protect plaintiff against the risk of falling. The court held that the worker’s injury does not necessarily establish a violation of the Scaffolding Law when there are triable issues of fact regarding the adequacy and safety of the staircase. The court refused to rely on the presumption that there wasn’t proper protection in cases involving ladders or scaffolds that malfunction for no apparent reason by noting that there was a triable issue of fact concerning the safety of the staircase.

However, in Kebe v Greenpoint-Goldman Corp., 2017 N.Y. App. Div. LEXIS 3643 (N.Y. App. Div. 1st Dep’t May 9, 2017), the First department upheld the lower court’s decision granting summary judgment for the plaintiff by relying on the presumption that there wasn’t proper protection. In that case, plaintiff was injured after falling from a ladder that he claimed had wobbled, was missing two rubber feet, and had spun and fell over. The court held that there wasn’t a triable issue of fact regarding the ladder’s safety and that the superintendent’s testimony that he saw the ladder standing soon after plaintiff’s fall was insufficient to refute that presumption. Ultimately, the applicability of the presumption that the ladder or scaffolding device was not good enough to afford proper protection turns on whether defendants can raise a triable issue of fact. However, that doesn’t just mean conflicting testimony; there must be legitimate questions of fact in order to prevent strict liability.