The Court of Appeals' recent decision in Rodriguez v. NYC, 2018 NY Slip Op 02287, *5 (2018) resolves a decades-old controversy and makes clear that a moving plaintiff need not prove his or her own lack of comparative fault in order to be granted partial summary judgment on liability. Although Rodriguez was decided in a general negligence context, it is argued here that no area of the law will feel its impact more than construction accident cases, particularly those involving a violation of Labor Law §241(6).

Rodriguez's application to §241(6) cases is even more straightforward than the general negligence setting in which it was decided. It is well settled that a §241(6) plaintiff establishes liability against statutory owners and contractors by proving that plaintiff's accident was caused by a job site violation of a specific section of Part 23 of the New York State Industrial Code. Misicki v. Caradonna, 12 N.Y.3d 511 (2009); Velasquez v. 795 Columbus, 103 A.D.3d 541, 959 N.Y.S.2d 491 (1st Dept. 2013). Part 23 sets forth concrete rules for owners, contractors and their agents to follow, and practitioners should use pre-trial discovery to adduce evidence establishing the factual violation of those rules. Unlike general negligence standards which by nature lend themselves to interpretation, Part 23 and its case progeny provides litigants with a clear road map as to what is and is not a violation and, by extension, as to when a plaintiff is entitled to judgment as a matter of law. Following Rodriguez, once the moving plaintiff has established that the defendant violated one of the Part 23 rules, the defendant must be held liable as a matter of law and any issues of comparative fault are to be left to the jury and resolved in accordance with CPLR Article 14.

Litigants, the bench and the bar alike stand to gain from this clarification and new paradigm. Now there can be no question that the important task of interpreting the law relating to §241(6) has been taken away from juries and given back to the bench where it belongs. This will not only narrow the issues for the jury but will also promote settlements by providing more predictability in the application of the law. Those who have attempted to explain to a jury the vexing legal framework relating to the vicarious liability of labor law defendants can appreciate the need to simplify this issue.

Consider the problems presented by a “pre-Rodriguez” §241(6) trial where the plaintiff's summary judgment motion is denied on comparative fault grounds. In this scenario, juries are miscast as arbiters of New York law by being forced to decide whether statutory defendants violated the Industrial Code. The problem with this, beyond extending a juror's function from fact finder to legal interpreter, is the possibility, or likelihood, of legally insufficient verdicts. Said simply, where such statutory violations occur, a jury must answer that the defendant was negligent as a matter of law, as failure to do so is reversible error. Nevertheless, prior to Rodriguez, the controlling law was such that all judicial departments, except perhaps the First Department (Tselebis v. Ryder Truck Rental, 72 A.D.3d 198 (1st Dept. 2010), would, or at least could, have denied summary judgment unless the plaintiff affirmatively established a lack of comparative fault. This led to a very inconsistent landscape where similar facts lead to very different results. Reynoso v. Bovis Lend Lease, Lmb, 2013 NY Slip Op 50725[U], *8 (Sup. Ct., Kings County 2013); compare Purcell v. Metlife, 2012 NY Slip Op 31149[U], *14 (Sup. Ct., N.Y. County 2012).

As a further illustration, assume a scenario where a carpenter walks down a corridor carrying a ladder and he slips on oil that had been spilled by the workers from another trade. Assume also that the accident report and the defendants' witnesses confirm both the oil and the slip and fall. Yet, as is common and to be expected, the defendant argues that there is a fact issue as to whether the plaintiff was adequately cognizant of his surroundings at the time of the fall, thereby calling into question his comparative fault. There can be no question that as a matter of law, the presence of the slippery substance in the passageway violated Labor Law §241(6), as the Industrial Code expressly forbids the presence of slipping hazards in a passageway. 12 NYCRR § 23-1.7; See Velasquez infra. Yet, despite clear evidence of the defendant's violation of the code and the negligence that necessarily flows therefrom, pre-Rodriguez, the question of whether the code was violated would have been up to a jury. Post-Rodriguez, however, since CPLR §3212(b) requires a plaintiff to show that there is no defense, and since under CPLR §1411 comparative fault is not a defense “but rather a diminishment of the amount of damages[,]” summary judgment will be granted consistently and the jury tasked only to determine what culpability the plaintiff has, if any, as a measure of damages.

The Rodriguez decision does not change the law or decrease the plaintiff's burden. Plaintiffs still need to establish that the defendants are proper labor law defendants, that the activity was a protected activity, that there was in fact a statutory violation of a sufficiently specific section of the Industrial Code, and that other defenses do not apply. Parrales v. Wonder Works Construction, 55 A.D.3d 579, 582 (2d Dept. 2008). However, Rodriguez now makes clear that when a plaintiff meets that burden, even in the presence of potential comparative fault, the sole issue for the jury will be that of apportionment in accordance with Article 14 of the CPLR.

The takeaway for labor law practitioners is that §241(6) plaintiffs can and should be granted summary judgment regardless of issues of comparative fault.

John Zaremba and Dan Gluck are both partners in Zaremba Brown, a construction accident law firm with a particular focus on the representation of injured members of the building trades.