New York Labor Law §240 — The Scaffold Law

The statute itself is short — about a paragraph. Stripped of legal language, it requires that:

All contractors and owners and their agents engaged 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.

Three things matter in that paragraph:

1. It applies to construction work — building erection, demolition, repair, alteration, painting, cleaning, and pointing of a building or structure. Not all work on a job site is “covered work” under §240. Some of it is. The boundaries of what counts have been litigated for a hundred years.
2. The required protection is for elevation-related risks — that is, the gravity-related dangers of working at height, or having objects above you. Specifically, falls from height, and being struck by objects falling from height. §240 is a “fall protection” statute. It does not cover every construction injury — only the elevation-related ones.
3. The contractor or owner must “furnish proper protection.” This is where the absolute liability comes in. If proper protection wasn’t there — if the scaffold was missing required safety rails, if the ladder wasn’t tied off, if the worker had no harness, if the harness’s anchor was inadequate — and the worker was injured because of it, the contractor and owner are liable. The worker’s own carelessness is generally not a defense.

The phrase “absolute liability” is sometimes misunderstood. It does not mean the contractor is automatically liable for any injury on a construction site. It means:

• If the worker’s injury was caused by an elevation-related risk;
• And the contractor or owner failed to provide adequate safety devices to protect against that risk;
• Then comparative fault is generally not a defense.

The contractor cannot escape liability by saying the worker was careless, didn’t follow the safety briefing, didn’t ask for a harness, or made a mistake — as long as the worker’s conduct was not the sole proximate cause of the accident.

The “sole proximate cause” defense is narrow. It generally requires the defendant to prove (a) that adequate safety devices were available to the worker, (b) that the worker knew he was supposed to use them, (c) that the worker chose not to use them for no good reason, and (d) that this was the only thing that caused the accident. If the safety devices were missing, defective, or not properly explained, sole proximate cause is off the table.

Courts have refused to apply sole proximate cause where:
– The worker was given a defective safety device.
– The worker was given inadequate instruction.
– The worker was working under time pressure that effectively required skipping safety steps.
– The worker thought (reasonably) that an alternative method was acceptable.

WHAT TRIGGERS §240

§240 applies to specific construction activities — generally summarized as the “enumerated activities”:

• Erection of a building or structure
• Demolition of a building or structure
• Repairing a building or structure
• Altering a building or structure
• Painting a building or structure
• Cleaning a building or structure
• Pointing of a building or structure

“Routine maintenance” is generally not covered. The line between “altering” (covered) and “routine maintenance” (not covered) has been fought over thousands of times in New York courts.

Common §240-covered situations:

• Falls from scaffolds, ladders, lifts, beams, roofs, formwork
• Falls through unguarded floor openings or roof openings
• Workers struck by tools, materials, or debris falling from above
• Hoist accidents and crane-load drops
• Demolition collapses

Common situations that are not §240:

• Slips and trips at ground level (no elevation differential)
• Routine maintenance work
• Manufacturing work in a factory (not construction work)
• Many “day porter” or janitorial-style cleaning tasks

WHO IS LIABLE UNDER §240

Owners

The owner of the property at the time of the accident is liable. The owner’s liability under §240 is non-delegable.

General contractors

The general contractor on the project is liable on the same non-delegable basis.

Statutory agents

A “statutory agent” is a party that has been delegated specific authority over the work that caused the accident.

WHAT §240 DOES NOT REQUIRE

§240 plaintiffs do not have to prove:

• That the defendant was “negligent” in the traditional sense.
• That the defendant had “notice” of a dangerous condition.
• That the defendant “controlled” the worker’s work.
• That the defendant violated a specific OSHA regulation.

“It was the worker’s own fault.”

Generally not a defense unless it was the sole cause of the accident.

“He was a recalcitrant worker.”

A recalcitrant worker defense can succeed only if the defendant proves the worker was specifically instructed to use available, adequate safety devices and refused.

“He wasn’t engaged in covered work.”

If a defendant can show the work was not one of the enumerated §240 activities, §240 doesn’t apply.

“There was no elevation-related risk.”

If the defendant can show the injury was not caused by a gravity-related hazard, §240 doesn’t apply.

THE DEVELOPER-INSIGHT ANGLE FOR §240

§240 cases turn on facts a lawyer might not see — but a developer would. Jordan reads these documents the way an active developer reads them — fluently, in context, fast — because that is the work he does every day.

WHAT YOU CAN RECOVER UNDER §240

• Past and future medical expenses
• Past lost wages and future lost earning capacity
• Past and future pain and suffering
• Loss of consortium for a spouse
• Wrongful death damages where applicable

Prior results do not guarantee a similar outcome.