What Are My Rights?

This law requires construction site owners, contractors or their agents to provide adequate safety devices to workers to protect them from elevation-related injury risks.

The law applies to workers who are engaged in certain types of work on a structure or building. If you were doing any of the following types of work at the time of your injury, you should be protected under this law:

• Erection
• Demolition
• Repairing
• Altering
• Painting
• Cleaning
• Pointing.

You should also be covered if you were doing any of the following types of work that are necessarily associated with construction activity:

• Cutting down trees or clearing land in preparation of a construction site
• Hoisting
• Roofing
• Earth moving
• Grading
• Excavation
• Trenching
• Conduit and pipe laying
• Road and bridge construction
• Concreting
• Equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose
• Cleaning of the exterior surfaces (including windows) of any building or other structure under construction
• Placing a sign on the exterior of a building
• Installing computer or communication lines in a building
• Replacing an oil burner in a furnace.

Some types of work are not covered under this law. These types include:

• Routine maintenance of a building or structure
• Salvage work (unless it was an “integral and necessary” part of demolition; if the salvage work is being done before demolition, it is not covered)
• Storage of material at a site where no construction work is being done
• Manufacturing
• Inspection work (unless the inspection was an “integral and necessary” part of an overall project that would qualify for coverage)
• Decoration work (unless it results in significant alteration or repair to a building or structure or is an “integral and necessary” of the erection or cleaning of the building or structure).

Cleaning of a building or structure can be a covered activity, too. It depends on the totality of the circumstances:

• Was it a part of daily, weekly or otherwise frequent, routine maintenance?
  If yes, the activity is likely not covered.
• Did it require special equipment or expertise?
  If yes, it would lean toward being a covered activity.
• Did it present any major elevation risks (compared to other types of typical domestic or household cleaning)?
  If yes, this would support that it was covered.
• Was it related to any ongoing construction, renovation, painting, alteration or repair project?
  If yes, it would also lean towards being covered.

Under Labor Law § 240(1), you can sue construction site owners, contractors or their agents only if the work involved certain buildings or structures in New York. These sites include:

• Commercial buildings
• Multiple family residences containing more than two family residences
• One-to-two family abodes with a non-residential owner
• Structures.

What’s a structure? The law defines it as any man-made (built or assembled) object. It can include:

• Bridges
• Roads or highways
• Water towers
• Boats, airplanes and trains
• Utility poles
• Furnaces
• Conveyor belts
• Manholes.

You cannot sue an engineer, architect or landscape architect under Labor Law § 240(1) if they had no role in directing or controlling the work. However, they could be sued in a different type of claim if their negligence caused an injury.

To support a Labor Law § 240(1) claim, you must show you were engaged in a covered activity (as discussed above). You must also establish:

• Your injury flowed directly from the forces of gravity – This is proof that your injury directly resulted from a risk created by a “physically significant elevation differential.” These cases generally fall into one of two categories:
  • Falls to a lower level (fractures and crush-type injuries)
  • Strikes from falling objects (even if the object falls from a base located on the same level).
• Breach of the statute – You must show that, even though there was the risk of an elevation-related injury, the owner, contractor or agent failed to provide:
  • Any safety devices
  • Safety devices that would provide adequate protection
  • Safety devices that worked properly and did not fail when needed.
    • Safety devices include scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices.
• Proximate cause – You do not need to show that the owner, contractor or agent was the sole cause of your injury. Instead, you must show the party was a cause. However, if the evidence shows you were the sole cause, you may be barred from a recovery.
• Damages – You must only show that you suffered some injury or damages due to the owner’s, contractor’s or agent’s breach of the law.

In a Labor Law § 240(1) claim, you can seek these past and future damages:

• Medical, hospital and rehabilitative services (including speech therapy, occupational therapy and physical therapy)
• Loss or impairment of income and fringe benefits (including health insurance and retirement benefits)
• Pain and suffering (including loss of enjoyment of life)

If you were performing a covered activity, you are a worker protected under this law. See the “Are You Protected” section for Labor Law § 240(1).

The same owners, contractors or agents you could sue under Labor Law § 240(1), you can sue under this law based on an injury caused by the failure to provide proper scaffolding equipment. This is why this law is often referred to as “The New York Scaffold Law.” Please see the “Who Can You Sue?” section for Labor Law § 240(1) for more information.

This is the big difference between a claim brought under this law and one brought under Labor Law § 240(1). Under this law, you must show:

• Work on scaffolding – You were working on scaffolding or staging that was more than 20 feet above ground.
• Breach of the statute – The owner, contractor or agent failed to provide safety rails of suitable material that were properly attached at least 34 inches above the floor of the scaffold along the outside edge, which Labor Law § 240 (2) requires. In other words, you must show:
  • There was no railing
  • The railing was not properly affixed
  • The railing was too low
  • The railing did not run the entire length of the scaffolding’s outside portion.
• Proximate cause – Your injury was caused by a fall from the elevated work platform due to the lack of a railing or due to a railing that failed to meet the statute’s requirements.

Please see the “What Can You Recover?” section for Labor Law § 240(1).

To be protected under this statute, you must have been engaged in the construction or demolition of a building or involved in excavation at a construction site.

You can sue the construction site owner, contractor or their agents.

A party cannot avoid liability by claiming the building was not a one-to-two family home and owned by one who did not direct or control the work, or that the party was an architect or engineer who did not direct or control the work.

In other words, the statutory defenses that can be used in a Labor Law § 240 claim cannot be used to defend against a claim brought under this statute.

Proving a case depends on which Labor Law § 241 subdivision is involved. The proof may be:

• § 241(1) – Floors were not filled in as the building progressed.
• § 241(2) – Underflooring was not laid on each story as the building progressed.
• § 241(3) – The floor two stories immediately below where you were working was not planked over.
• § 241(4) – If the floor beams were iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work was being erected was not planked over.
• § 241(5) – If elevators for hoisting equipment were used to lift material, the shafts or openings on each floor were not totally enclosed or fenced on all sides.

Like other Labor Law claims, you must also show proximate cause. In other words, the failure of the owner, contractor or agent to comply with the safety duties under this law served as a cause – not necessarily the sole cause – of your injury.

Please see the “What Can You Recover?” section for Labor Law § 240(1).

This law imposes a duty on owners, contractors or their agents to protect those who work in or at an elevator shaft, hatchway or stairwell of a building. You must have been involved in construction or demolition of the building.

Please see the “Who Can You Sue?” section for Labor Law § 240(1).

In addition to showing that you are protected under this statute, you must also prove:

• The owner, contractor or agent breached the law’s requirements by failing to provide planking at least two inches thick across the opening at levels not more than two stories above and not more than one story below
• You suffered injuries due to:
  • An object falling more than two floors
  • A fall of more than one floor.
• Additionally, you must establish proximate cause. But for the failure of the owner, contactor or agent to comply with the statute’s requirements, would you have suffered injury?

Please see the “What Can You Recover?” section for Labor Law § 240(1).

Labor Law § 241(6) requires owners, contractors and their agents to provide a safe and reasonable job site wherever “construction, demolition or excavation” work is being done. This is done through compliance with the safety requirements of Rule 23 of the New York State Industrial Code. The law protects not only workers but also any other person “lawfully frequenting” a job site.

You can sue a construction site owner, contractor or their agents. Please see the “Who Can You Sue?” section for Labor Law § 240(1).

To prove a Labor Law § 241(6) claim, you must show you are in the protected class as well as:

• A specific, concrete Industrial Code Rule applied to your situation
• The owner, contractor or agent violated the rule
• This violation constitutes the failure to use reasonable care, or negligence
• This violation also served as the proximate cause of your injury.

Among the construction site hazards addressed by the Industrial Code are:

• Falling (including falls from heights and slip-and-falls)
• Falling objects and materials
• Operation of vehicles
• Operation of construction, demolition and excavation machinery
• Fires and explosions
• Electricity
• Dangerous tools, machines and materials
• Handling and movement of heavy materials
• Exposure to the elements and air contaminants.

Proof that an owner, contractor or agent failed to comply with OSHA rules or local building code rules cannot be used to establish a Labor Law § 241(6) claim.

You do not have to prove that the owner, contractor or agent had notice of the Industrial Code violation.

Please see the “What Can You Recover?” section for Labor Law § 240(1).

If you are partially at fault for the construction accident, you won’t be kept from recovering compensation. However, your compensation will be reduced based on the percentage of fault assigned to you. For instance, you could only recover 50 percent of your past and future damages if you were 50 percent at fault.

Labor Law § 200 places a general duty on owners, contractors and their agents to provide a safe place for employees. Thus, it applies to workers engaged in a wide variety of activities at construction sites.

You can sue a construction site owner, contractor or their agents. However, this law is different than bringing a claim under other sections of the Labor Law. This is because you must show that the owner, contractor or agent:

• Created or had notice of a dangerous condition on the job site, and
• Had authority to supervise or control the manner of work or the condition.

The notice of the dangerous condition or manner of work can be either actual notice or constructive notice. If an owner or contractor should have discovered a hazard upon reasonable inspection, it amounts to constructive notice.

In addition to showing that an owner or contractor had notice of the dangerous condition and supervised or controlled the manner of work, a claim under Labor Law § 200 also will require proof that:

• A dangerous condition existed, and
• This condition served as the proximate cause of your injury.

Unlike a Labor Law § 241(6) claim, you can use a violation of OSHA regulations to establish a claim under Labor Law § 200.

Please see the “What Can You Recover?” section for Labor Law § 240(1).

Like a claim under Labor Law § 241(6), your recovery could be reduced if you are found to have been partially to blame for the accident that caused your injury.