Owners, general contractors, and agents of owners at construction sites often face an uphill battle, if not an insurmountable battle, in defending Labor Law §240(1) cases. The statute provides, in part, “all contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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.” Such statute and interpretive case law have led many to refer to Labor Law §240(1) as a strict liability statute for workers injured by falling objects or workers who themselves fell on the jobsite.

However, a recent New York Appellate Division – First Department decision reminds us not to be so quick in presuming a defendant faces liability on Labor Law §240(1). In Giordano v. Tishman Construction Corp., 2017 Slip Op 05796 (1st Dep’t July 25, 2017), the Plaintiff, a construction worker, fell thirty feet from scaffolding during the construction of the Freedom Tower at 1 World Trade Center, when he stepped on a pipe brace that suddenly gave way. On dueling summary judgment motions, the Appellate Division found that questions of fact existed as to whether the scaffolding itself provided adequate anchoring points at which to tie off, and whether Plaintiff (who unhooked his lanyard) could have used his double lanyard to remain tied off all times. Giordano will prove to be a useful case for the defense in arguing not all gravity-related accidents at a jobsite result in liability under the Labor Law.