First Department Speaks on Labor Law § 240(1): Couplings Are Statutory Safety Devices. And, Foreseeability of the Need For A Device May Be the Dispositive Inquiry.

In Fabrizi v. 1095 Ave. of the Americas, L.L.C., a three opinion decision, a majority of the First Department found that questions of fact existed as to whether a "coupling" provided to the plaintiff to secure conduit was an adequate safety device under Labor Law § 240(1). The plaintiff, an electrician, was injured when a piece of conduit fell and struck his hand after it had separated from a "compression coupling." The plaintiff had specifically asked his supervisor for a "set screw coupling" to secure the pipe. Defendants argued that the compression coupling, along with an additional support system that had been provided, were sufficient for the work being performed. Four of the five Judges found that neither side had established their position as a matter of law, and therefore both plaintiff's and defendants' motions for summary judgment should have been denied.

In his dissenting opinion, Judge Tom argued that the defendants were entitled to summary judgment either because plaintiff was the sole proximate cause of his accident or because a "coupling" is not a statutory enumerated safety device. With respect to sole proximate cause, Judge Tom observed that plaintiff had removed two securing devices, without rational explanation, and left the conduit connected only to the compression coupling while he worked directly underneath the conduit. As to the coupling itself, Judge Tom found that it was not a statutory safety device, but rather a component part of the conduit system "whose purpose is to connect two sections of conduit" not to secure the conduit against falling.

In a third opinion, Judge Román felt constrained to address the concept of "foreseeability" in the context of Labor Law § 240(1). As the readers to this blog may recall, Judge Acosta had previously written an opinion in Ortega v. City of New York in which the Judge indicated that foreseeability applied only to Labor Law actions involving the collapse of a permanent structure. By contrast here, Judge Román argued that foreseeability applies to all Labor Law § 240(1) claims, especially claims involving falling objects. Of particular note is Judge Román’s observation that “foreseeability in the context of Labor Law § 240(1) jurisprudence, is a term we seldom see expressly mentioned in the relevant case law… Nevertheless, even when not specifically mentioned, in a great number of cases… foreseeability has been dispositive and has been necessarily implied.” Therefore, according to Judge Román, the relevant inquiry must address “whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.”

Given the apparent split within the First Department on the issue of foreseeability as applied to Labor Law § 240(1), “coupled” with the fact that apparently anything can constitute a statutory enumerated safety device when placed in context with gravity related work, defendant’s counsel would be well advised to develop an argument that it was unforeseeable that plaintiff’s work would involve a gravity related risk, and therefore the defendant did not owe plaintiff a duty to provide a statutory safety device in the first instance.