While doing my weekly review of recent Labor Law decisions, I went down a rabbit hole.

Most of my attention ordinarily goes to how courts apply Labor Law § 240(1) after an accident. Was there an elevation-related hazard? Was an adequate safety device provided? Was the plaintiff the sole proximate cause of the accident? As anyone who practices in this area knows, the analysis can be intensely fact-specific. A seemingly minor factual distinction can mean the difference between liability and dismissal.

This week, though, I found myself asking a more basic question:

If I'm a property owner or general contractor standing on a construction site on Monday morning, what does the statute actually tell me to do so that I know I'm in compliance?

So I went back to the text.

Section 240(1) requires owners and contractors engaged in certain construction-related work to furnish or erect:

"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" 

That sounds manageable enough. Identify the work being performed, determine what safety equipment is required, provide it, and make sure it is properly constructed, placed, and operated.

Then it gets harder.

The equipment must provide "proper protection."

What constitutes proper protection?

The statute doesn't say.

The list of safety devices isn't exhaustive either. After naming scaffolds, hoists, ladders, slings, ropes, and other equipment, the Legislature added a catch-all: "other devices."

Which other devices?

The statute doesn't say that either.

Maybe OSHA fills the gap?

Nope.

As the Appellate Division put it rather plainly, "mere compliance with OSHA regulations does not defeat a prima facie showing of Labor Law § 240 (1) liability." Murray v Arts Ctr. & Theater of Schenectady, Inc. (2010). The facts in Murray make the point even more sharply. The contractors had agreed to follow OSHA, and OSHA did not require the worker to tie off at the height from which he fell. His supervisor had told him he didn't need to. The court granted the plaintiff summary judgment anyway.

Maybe the worker's own conduct fills the gap?

Only sometimes.

Comparative negligence is not a defense where a violation of § 240(1) was a proximate cause of the accident. A worker's conduct can defeat liability under the sole proximate cause doctrine, but that is a much narrower inquiry. Generally, an adequate safety device must be readily available, the worker must have known both that it was available and that he was expected to use it, and he must have chosen not to use it for no good reason. See Cahill v Triborough Bridge & Tunnel Auth. (2004).

I recently wrote about Tobon v Turner Constr. Co., which illustrates the problem nicely. There, the First Department affirmed summary judgment for a worker who was injured while riding on a scaffold as his coworkers moved it. The general contractor had instructed workers not to "ride or surf" the scaffold.

From the perspective of our hypothetical contractor standing on the job site Monday morning, that sounds pretty good. Identify an unsafe practice, and tell workers not to do it. It wasn't enough.

To be fair, the Court of Appeals has made clear that § 240(1) does not make owners and contractors insurers of every worker on a construction site. Blake v Neighborhood Hous. Servs. of N.Y. City (2003). Not every construction accident gives rise to § 240(1) liability, and the statute contains meaningful limits.

But look at the statute from the perspective of the regulated party rather than the litigant. Whether the protection provided was "proper" depends on the particular work, the specific elevation-related risk, the equipment provided, how it was deployed, and the circumstances of the accident. Even conduct by the injured worker that contributed substantially to the accident may not relieve the owner or contractor of liability.

Most of our § 240(1) jurisprudence, therefore, answers a retrospective question: Was the protection provided adequate?

An owner or contractor has to answer a different question before anyone gets hurt: What do I need to do today to make sure the protection I'm providing will later be deemed adequate?

That's a considerably harder question.

So, after going down this particular rabbit hole, what did I learn?

If you're an owner or contractor trying to figure out exactly what § 240(1) requires of you before something goes wrong, the answer isn't always obvious. Ongoing guidance is required to understand the frequently changing nuances of its application to particular circumstances.