I was asked several months ago to do a short CLE presentation on the "Top 10 Labor Law Decisions" of "The Past 10 Years." In context, the speaker was referring to decisions that had involved §§240, 241(6) or 200 of the Labor Law. With a new decade on the immediate horizon, the idea seemed timely, and I agreed.

As with virtually any "Top 10" list, the selection process was subjective. Also, with the further passage of time, some of my selections have passed beyond the 10-year look-back, with the consequence that the list now embodies an 11-year look-back. (2009 was a big year in Labor Law jurisprudence.)

In compiling my list, I confined myself to Court of Appeals' decisions. I considered not only the importance of the determination, but also its novelty, and, especially in one instance, the controversy that afterwards ensued.

So, what now follows in inverse order of importance is the first half (meaning the bottom half) of that "Top 10."

10. Barreto v. Metro. Transp. Auth., 25 N.Y.3d 426 (2015): The Sole Proximate Cause Defense, and the Really Heavy Manhole Cover. I've included this case mainly for its novelty. The Court of Appeals split three ways, with different members of the panel concluding (1) plaintiff should prevail as a matter of law, (2) defendants should prevail as a matter of law, and (3) neither side should prevail as a matter of law.

The facts in the proverbial nutshell: Plaintiff was an asbestos handler who fell through an uncovered manhole. Plaintiff's employer was hired to remove asbestos from certain underground cables. The manhole cover had been removed so as to allow access to the cables. Prior to the commencement of the asbestos removal work, the employer constructed a wooden containment enclosure around the manhole.

At the conclusion of the shift, plaintiff and his co-workers were instructed to disassemble the containment enclosure, but only after replacement of the manhole cover. But, according to plaintiff, it was dark, because it was 4:00 a.m. and the lights inside the enclosure had been turned off. So, plaintiff forgot the manhole was uncovered and …

The issue that split the court: Was plaintiff's negligence the "sole proximate cause" of the accident as a matter of law within the meaning of that doctrine? Did that defense fail as a matter of law? Or was that an issue of fact to be resolved by a jury?

Two of the dissenters, Judge Stein and Judge Abdus-Salaam, felt that the issue was for a jury because, amongst other reasons, the "conflicting testimony concerning whether the area surrounding the manhole was illuminated at the time of the accident" raised "a triable issue as to whether plaintiff could or should have observed that the manhole cover was missing when he fell." The rest of the court felt the issue should be resolved as a matter of law … but disagreed as to who should prevail. Interestingly, the split turned in part on the significance of a fact the majority deemed critical: that the manhole cover was too heavy for a single worker to move.

Held: Writing for the majority, Judge Pigott reasoned that the plaintiff met his burden as a summary judgment movant by "establishing the absence of an adequate safety device through the submission of the deposition testimony … that there should have been a guard rail system around three sides of the open manhole while the containment enclosure was being dismantled." As for the fact that the accident would not have occurred had plaintiff not dismantled the enclosure before the manhole cover had been replaced, plaintiff's conduct was not the sole proximate cause of the accident inasmuch as:

(a) it was undisputed "that it took at least two PAL workers to move the manhole cover (given its weight)," and,

(b) the fact that the lights had been turned off prior to disassembly of the containment enclosure was itself a cause of the accident.

Judge Read, dissenting alone, would have granted defendants summary judgment on plaintiff's Labor Law §240 claim inasmuch as "plaintiff did not wait for the manhole to be covered, as he had on previous occasions and as he knew he was supposed to do" and "offered no explanation for his safety lapse, or for his assumption that the manhole must have been covered even though he admittedly was not advised by his supervisor that this was the case."

"[W]hether it took two or more of the PAL workers in the five-person crew to replace the manhole cover" was, in Judge Read's view, "irrelevant" to the inquiry. Further, even if it was dark, which Judge Read found "hard to believe," such did not "explain why plaintiff proceeded to disassemble the enclosure without receiving the 'okay' from his supervisor, which he testified that he had waited for in the past."

9. St. Louis v. Town of N. Elba, 16 N.Y.3d 411 (2011): The 'Sensibly Interpreted and Applied' Standard. Most of the Court of Appeals' decisions concerning the Labor Law statutes governing construction site accidents have turned on construction or application of Labor Law §240(1). Comparatively few decisions have involved Labor Law §241(6). (And still fewer have involved Labor Law §200, where the leading cases of the last few decades have all emanated from the Appellate Division.)

St. Louis was one of the two decisions on my Top 10 list that involved application of Labor Law §241(6).

Under the still governing principles of Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993) and Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998), the worker proceeding under Labor Law §241(6) must prove that (1) someone (not necessarily any of the defendants) negligently violated a "concrete" (i.e., not overly general) provision of Industrial Code 23 (the State construction regulations), and (2) such violation was a proximate cause of the subject accident. Often, the actually negligent party is the one entity the plaintiff could not sue: his or her employer.

But how broadly or narrowly should the provisions of Industrial Code 23 be construed? That was the issue that split the Court of Appeals in St. Louis.

12 NYCRR 23-9.4(e)(2), which governs the use of "power shovels and backhoes" for "material handling," requires the load be "connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load." That was not done in St. Louis, with the consequence that the jaws of the bucket arm opened and the pipe which the workers were trying to move pinned plaintiff to the ground, causing injury.

The sticking point was the machine in issue was not a "power shovel" or a "backhoe." It was a front-end loader that was being used in the manner of a power shovel or backhoe. Did the regulation nonetheless apply? The issue split the court 4 to 3.

Held: Per a decision penned by Chief Judge Jonathan Lippman, the court ruled that the regulation indeed applied.

In so ruling, the court reasoned that "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace." For this reason, "the preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation."

As applied to the case then before the court, the provision in issue was "clearly drafted to reduce the threat posed by heavy materials falling from buckets by requiring loads to be fastened with sturdy wire, proportionate to the weight of the load." Noting that "[t]he same danger that exists for a working using a power shovel or backhoe with an unsecured load exists for a worker using a front-end loader with an unsecured load," and further noting that the front-end loader in issue was not so different than a power shovel or backhoe that the regulation could not be "sensibly" applied to the case at bar, the court deemed the provision applicable.

8. Morris v. Pavarini Const., 22 N.Y.3d 668 (2014): A Question of Forms and Substance. Morris, the other case on my list that involved application of Labor Law §241(6), is noteworthy in two respects.

One aspect of the case: Morris directly followed the "sensibly interpreted and applied" standard of St. Louis. Morris involved alleged violation of 12 NYCR 23-2.2(a). That provision states that "Forms … shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape." But did the term "forms" mean completed forms, or did it also include unfinished forms? In the case before the court, the object that fell on plaintiff was not a completed form. Defendants urged that "forms" meant completed forms and that an uncompleted form was not a form at all; it was merely a component of a form.

The court ruled by 6 to 1 vote that since the experts on each side agreed that the uncompleted form could have been "braced or tied together so as to maintain position and shape," that meant "the language of 12 NYCRR 23-2.2(a)" could "sensibly be applied to other than a completed form, and may apply to a wall component."

The other and even more noteworthy aspect of the decision concerned the proper function that expert opinion may play in construction of the Industrial Code and of regulations in general.

Of course, it is the courts' role, not that of parties' respective experts, to construe what any particular statute or regulation means. That the plaintiff's expert says the regulation means X, or that the defendant's expert says it means Y, may sometimes be of interest but cannot change that it's the court's opinion that matters.

Yet, the court may sometimes need expert opinion as to the underlying subject matter—whether that subject matter is medicine, physics, or construction site safety—in order to intelligently interpret a particular statute or regulation. That was the case here.

The court's 2014 decision in Morris was its second ruling in the case. Its first ruling was back in 2007 (at 9 N.Y.3d 47). The issue in Morris I was exactly the same: Did 23-2.2(a) apply only to completed forms? However, the answer to the legal question turned in part on a matter beyond the court's expertise. The court did not know whether it was feasible to brace or tie wall components (i.e., uncompleted forms) "so as to maintain position and shape." Without that knowledge, it could not determine whether the provision could be "sensibly" applied to uncompleted forms.

So, the court decided in 2007 to remand the case so that the parties could adduce expert opinion that the court needed to fashion the legal ruling. This eventually led to the 2014 ruling, based on that evidence, to the effect that the regulation could be "sensibly" applied to the case.

7. O'Brien v. Port Auth. of New York and New Jersey, 29 N.Y.3d 27 (2017): The Ruling That Changed Basically Everything or Basically Nothing, Depending on One's Perspective. O'Brien makes the list mainly because of the controversy that afterwards ensued concerning what the 4-3 ruling portended or did not portend. In particular, did the court intend to impliedly overrule its landmark ruling in Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985)?

Background: The Court of Appeals' 1985 decision in Zimmer, 65 N.Y.2d 513 encompassed two actions that were joined for purposes of Court of Appeals review: Zimmer itself and Hunt. In each case, the plaintiff was an ironworker who fell from a height (31 feet up in Zimmer, 25 feet up in Hunt). In each case, the plaintiff-worker had not been provided with any safety devices to protect him from falling.

In Zimmer itself, the defendants urged that the accident occurred at an early stage of construction, that devices "such as netting, metal decking and lifelines, normally are not used during the early stages of construction projects," and that "it would have been infeasible, even dangerous, to have used any such device." Zimmer, 65 N.Y.2d at 519. In Hunt, the defendants adduced "evidence of industry custom" to the effect "that devices such as scaffolding, nets, safety lines and safety belts were never used on the type of building involved." Id. at 520. In contrast to Zimmer, the Hunt defendants claimed only that such protection was not normally provided, not that it would have been "infeasible" or "even dangerous" to provide such safeguards.

The Zimmer court rejected the defenses in both cases and held that both plaintiffs were entitled to judgment as a matter of law. In Hunt, while "evidence of custom and usage was admissible to determine the standard of care in a negligence context under the claimed violation of sections 200 and 241(6)," such proof could not alter the standard of care dictated by Labor Law §240 inasmuch as "liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage."

In Zimmer, "it was error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any, should be used during the very early stages of the construction." Rather, "the uncontroverted fact that no safety devices were provided" to prevent the plaintiff-worker from falling meant that "a verdict of liability should have been directed in plaintiff's favor."

The Facts: I take the facts from the majority opinion penned by Chief Judge DiFiore. "It had been raining periodically during the day" and the plaintiff headed downstairs to get his rain jacket. In order to do so, he used a "temporary exterior metal staircase." The stairs were wet.

There was a dispute whether the stairway's tread was worn as well as wet. Plaintiff testified that the stairs were "smooth on the edges." Based upon photographs in the record, the plaintiff's expert said that the "small round protruding [metal] nubs," which purportedly provided "limited anti-slip protection" even when new, were worn as a result of "longstanding wear and tear." He also said that "the stairs were 'smaller, narrower and steeper than typical stairs'" and that they were "'not in compliance with good and accepted standards of construction site safety and practice.'"

Defendants countered with expert opinion to the effect that "the staircase was designed for both indoor and outdoor use and was 'designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather." Defendants' experts also maintained there was "'no evidence' that the perforated steel treads had been worn down by foot traffic." They also said that the staircase was not unusually small, narrow or steep.

But there was no dispute that the stairs were wet. Nor was there any dispute that plaintiff slipped and fell down the stairs, sustaining injuries.

Was the plaintiff entitled to summary judgment because he slipped from a definitely wet and apparently slippery stairway? Or was there a triable issue as to the adequacy of the "protection"?

Appellate Division: The Appellate Division split 4 to 1. The majority ruled that the experts' disagreement was irrelevant since "[a] plaintiff is entitled to partial summary judgment on a section 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants' failure to take mandated safety measures to protect him against an elevation-related risk."

Held: By 4 to 3 vote, the Court of Appeals ruled that there were "questions of fact as to whether the staircase provided adequate protection."

The majority distinguished the case from those "'involving ladders or scaffolds that collapse or malfunction for no apparent reason.'" It distinguished Zimmer on the ground that Zimmer was a case in which "'no safety devices were provided at the worksite,'" whereas this was a case in which the experts "differ[ed] as to the adequacy of the device that was provided."

Yet, if the case differed from Zimmer and Hunt because the defendant herein had provided a "safety device," what, exactly, was the "safety device" that a jury could deem "adequate"? Was the court was referring to the metal nubs which, depending on whom one believed, were either worn or perfectly fine? Was it the stairway itself? If the latter, would that mean provision of any ladder or scaffold, no matter how defective or ineffectual, would also raise a triable issue?

Just as importantly, did the court mean that, excepting those cases in which the ladder, scaffold or other elevation device collapses, alleged compliance with industry standards automatically raises a question of fact as to the adequacy of the device? If so, that would mean that there will always be a triable issue of fact since defendants will always be able to find an expert to say that whatever was provided was adequate.

But that appears not to be what the majority meant. The majority said that "such compliance [with industry standards] would not, in itself, establish the adequacy of a safety device within the meaning of Labor Law §240(1)" but that "we do not read defendants' expert's opinion to be so limited." Such would seemingly suggest there must be something more than alleged compliance with industry standards to raise an issue of fact. What that "something more" might be remains a mystery since the majority did not explain what part or what feature of the expert opinions in the case before it made alleged compliance with industry standards a viable defense.

Dissent: The lengthy dissent, penned by Judge Rivera, with which two other judges joined, charged that the majority's ruling "reflect[ed] a misunderstanding of the legislative intent and statutory mandates of Labor Law §240(1)." In the dissenters' view, the mere fact that plaintiff fell did not entitle him to summary judgment. Workers can and do fall from perfectly safe ladders and scaffolds. However, where, as here, it was undisputed that the staircase was "generally … slippery, especially when wet, as it was on the day of plaintiff's injury," that was another matter. In the dissenters' view, "[a] metal outdoor staircase known to be slippery, especially one exposed to rain, is not an appropriate safety device within the meaning of the statute."

What The Ruling Really Meant: In the immediate aftermath of O'Brien, two columns that appeared in this publication offered two radically different opinions as to the import of the O'Brien ruling. I will here suggest a third possibility.

Shortly after the ruling in O'Brien came down, a New York Law Journal column penned by defense advocates Andrea M. Alonso and Kevin G. Faley, titled "The Elevation of the Expert" NYLJ (May 26, 2017), urged:

O'Brien increases the ease with which summary judgment may be defeated. When defendants can offer expert affidavits, the adequacy of a scaffold or ladder will now almost always be a question of fact … Defendants now should routinely retain an expert to examine the scaffold, ladder, etc. in order to provide an opinion of the adequacy of the safety device.

Roughly a week later, in a New York Law Journal column penned by four prominent members of the plaintiffs' bar ["O'Brien Reaffirms Decades of Law Protecting Workers," NYLJ (June 2, 2017)], the writers asserted the polar opposite view, stating:

The recent decision by the Court Appeals [in O'Brien] addressing Labor Law §240(1) reaffirmed the strong protections afforded workers under the statute.

*  *  *

[Although some] argue that O'Brien stands for the proposition that where experts disagree on the adequacy of a safety device, the expert conflict creates a fact question … Nothing could be more inaccurate.

Here's a third take: O'Brien did not generally "increase[] the ease with which summary judgment may be defeated." Nor was it a victory for the plaintiffs' bar. Rather, the case was, at its core, a sui generis ruling that ultimately related only to exterior stairways and held only that the fact that an exterior stairway becomes wet when it rains does not of itself compel the imposition of liability?

Take your pick.

6. Soto v. J. Crew, 21 N.Y.3d 562 (2013): The Difference Between 'Cleaning' and 'Cleaning'.

Section 240(1) of the Labor Law lists the specific activities to which the statute applies ("erection, demolition, repairing, altering [etc.] … of a building or structure"). The plaintiff who seeks the benefit of the statute's protections must show that he or she was engaged in one or more of those listed activities.

Those who are less familiar with the statute's provisions are sometimes surprised to learn that one of those expressly covered activities is "cleaning." Yet, at least since the Court of Appeals' 1958 ruling in Connors v. Boorstein, 4 N.Y.2d 172, it has been clear that not every act of "cleaning" falls within the statute's ambit. There, where plaintiff, "a domestic in the employ of the defendants, was injured when she fell from a stepladder on which she was standing while cleaning a storm window on the outside of her employer's private residence," the court ruled "that the word 'cleaning' as used in context, has reference to the 'cleaning' incidental to building construction, demolition and repair work and not to the cleaning of the windows of a private dwelling by a domestic."

The Connors court did not, however, articulate a governing standard that would generally apply to other cases. The Court of Appeals finally did so in Soto.

Soto was itself an easy case. Plaintiff, "an employee of a commercial cleaning company hired to provide janitorial services for a retail store, was injured when he fell from a four-foot-tall ladder while dusting a six-foot display shelf." The court unanimously ruled that such was not the kind of "cleaning" that came within the ambit of the statute.

In so ruling, the court set forth four factors that collectively govern whether any given activity should be deemed "cleaning" for purposes of the statute:

Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as "cleaning" under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law §240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project …

The Soto court added that "[t]he presence or absence of any one [factor] is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other."

Brian J. Shoot, a partner with the firm of Sullivan Papain Block McGrath & Cannavo, P.C., is a member of the American Academy of Appellate Lawyers, and also of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System.