I here address two current controversies regarding application of Labor Law §240. One, which recently prompted dueling, high-profile opinions by two First Department justices, concerns the extent to which the element of foreseeability, so basic in negligence actions, is relevant in assessing liability under Labor Law §240. The second concerns a largely unnoticed trend in which courts have penalized the plaintiff-worker for the transgressions of his or her employer in overstepping the bounds, temporal or geographic, in which the employer was authorized to work.
The Foreseeability Issue
Liability will not be imposed at common law unless the act or omission claimed to give rise to liability posed a foreseeable risk of injury to the plaintiff.1 While foreseeability will not of itself create a duty of care, foreseeability is an element of common law negligence.2 Indeed, it is the party’s failure to act reasonably with respect to a foreseeable risk that makes the party negligent.3
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