AD4: factory owner not strictly liable under Labor Law 240(1) for fall from building within a building

Dahar v Holland Ladder & Manufacturing Company, 2010 NY Slip Op 09646 [available here]

A building owner is strictly liable for injuries sustained by workers "in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure [...]." Labor Law 240(1). The plaintiff in Dahar worked at a factory that made . . . prefabricated buildings. He fell from a ladder while cleaning a "wall module" of one of these prefab buildings. The wall module was still inside the factory when the accident happened. The plaintiff sued the owner of the factory under 240(1), alleging that the factory owner was strictly liable because plaintiff fell from a height while "cleaning" a "building or structure," i.e the prefab wall module.

The Court thus confronted a bit of a Russian nesting doll, building-within-a-building problem: while the worker was technically cleaning a "structure," he was not really engaged in the construction, demolition or repair work of the owner's building that typically falls within the reach of section 240(1). The Fourth Department, in a majority memorandum opinion (joined by Justices Scudder , Smith, and Carni), held the plaintiff could not recover under Labor Law 240(1). The "plaintiff was engaged in a 'normal manufacturing process' at a factory building" and therefore "not engaged in a protected activity pursuant to Labor Law 240(1)." That the factory made actual buildings was not enough to transform plaintiff's action into a strict liability Labor Law claim.

Justices Green and Lindley dissented. Under the plain language of the statute, the owners of the factory were "owners," and the plaintiff was "cleaning" a "structure" at the time of the accident, albeit in a very literal sense. The dissenters would have read Labor Law 240(1) broadly, noting that "liability turns on whether the particular [cleaning] task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against."