Affirmative Defenses to Statutory Liability

Both New York Labor Laws §240 and § 241 subject property owners and contractors to strict liability for worker’s injuries.  Neither section is subject to affirmative defenses of contributory or comparative negligence, regardless of the degree of the worker’s negligence.  Both statutes provide for the protection of workers at a construction site.  If the injured worker can demonstrate that either statute was violated and that the violation was a proximate cause of their injury, the worker is entitled to recover damages from the owner, the contractor, and any of their agents involved in the project.

One way for the owner and contractor to escape liability under the statutes is if a violation of the statutes was not the proximate cause of the worker’s injury.  This was the case in Mack v. Altmans Stage Lighting Co., Inc., 98 A.D.2d 468, 470 N.Y.S.2d 664 (2d Dept. 1984), where the court found the worker’s conduct was unforeseeable and a proximate cause of his own injuries.  In that case there was a violation of § 240(1) because a ladder that blew over in the wind should have been anchored.  However, rather than waiting for assistance or calling someone, the worker on the roof decided to climb down a worn old rope to leave the roof and was injured as a result.

Another affirmative defense to strict liability under these statutes is if sufficient safety equipment was made available but the worker nonetheless failed to use it.  To prove this defense, the contractor or owner on the project must demonstrate that the safety equipment was readily apparent at the work site and the injured worker simply failed to use it of his own accord.  [1]

This was the case in Jastrzebski v. North Shore School District, 223 A.D.2d 677, 637 N.Y.S.2d 439 (2d Dept. 1996), where the injured worker blatantly ignored his supervisor’s warning of the instability of the ladder he was using.  The worker was on the ladder attempting to attach a piece of plywood when his supervisor told him specifically to dismount the ladder because it was unstable and to use a scaffold already in place.  Despite the warning, the worker mounted the ladder again, at which point it broke and he was injured.

A final affirmative defense to strict liability is if the injured employee is not an employee at all.  A worker injured at a worksite would have no claim against an owner if said work was done unlawfully or without the owner’s consent.  Morton v. State, 13 A.D.3d 493, 788 N.Y.S.2d 124 (2d Dept. 2004) involved an injured construction worker who was in the process of excavating a state highway when the excavation walls collapsed onto his leg.  The court found he was not an employee within the meaning of the Labor Law, and therefore could not be afforded the protection of the statutory liability.  The worker’s employer had failed to obtain a highway work permit in violation of state law, and both the employer and worker were trespassing on state property when they were performing excavation and repairs on the state highway.

Similarly, a volunteer is not entitled to recover under the Labor Laws for injuries sustained at a job site.  For example, a worker injured in the process of performing improvements on his brother’s restaurant was found not to be entitled to any statutory remedies.



[1] Koumianos v. State, 141 A.D.2d 189, 534 N.Y.S.2d 512 (3d Dept. 1988)

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