READ, J.
Claimant Alan Morton was injured on the morning of April 3, 1997 while working for his employer, New York Water Service Corporation (the water company), a private company that furnishes water to portions of Nassau County. On that date, he was a member of a four-person work crew, including a foreman, dispatched with a backhoe to fix a break reported in a company-owned water main installed in 1928 beneath Carman Mill Road, Massapequa, New York, a part of the State of New York's highway system (see Highway Law § 341 [29] [1]).
Upon arrival at the job site, the work crew notified affected customers and shut off water service, excavated test holes to pinpoint the leak's origin, and placed traffic cones to alert motorists to the presence of the backhoe, which occupied a portion of the northbound travel lane. Using the backhoe and shovels, the crew dug up blacktop in the roadbed and created a hole or trench, exposing the 12-inch water main buried several feet underground. When claimant climbed down into this trench to clean around the main and apply a repair clamp, a side wall caved in, burying his right leg and foot.
The State argued that it was not liable under Labor Law § 241 (6) because the water company failed to obtain a work permit from the New York State Department of Transportation (DOT), as mandated by Highway Law § 52, prior to repairing the water main, which was situated within the state highway right-of-way. Section 52 provides that
By decision and order dated October 21, 2002, the Court of Claims dismissed claimant's negligence claims because the State lacked actual or constructive notice of any dangerous condition and did not exercise supervision or control over the work site. The court also denied claimant's motion and the State's cross
After the ensuing nonjury trial, the Court of Claims on April 9, 2003 found that the excavation was not protected by sloped or banked sides or by sheeting, shoring or bracing, and that it was more than five feet deep. The judge decided that claimant had therefore proven violations of sections of the Industrial Code specific enough to support Labor Law § 241 (6) liability; and that these violations proximately caused the accident, and thus contravened the State's nondelegable duty to claimant under Labor Law § 241 (6). The judge also found that the State had not proven claimant's comparative negligence by a preponderance of the credible evidence. Accordingly, on May 7, 2003, an interlocutory judgment determining the State to be negligent and 100% liable for claimant's injuries was entered in the Court of Claims. The State appealed from both the order denying its cross motion for summary judgment on the section 241 (6) claim and the interlocutory judgment.
In December 2004, the Appellate Division dismissed the State's appeal from the interlocutory judgment as academic; reversed, on the law, the portion of the Court of Claims' order that denied the State's cross motion for summary judgment dismissing the section 241 (6) claim; granted the State summary judgment on and dismissed that claim; and vacated the interlocutory judgment (13 A.D.3d 498 [2d Dept 2004]). Citing Abbatiello v Lancaster Studio Assoc. (3 N.Y.3d 46, 51 [2004]), the court reasoned that the
We granted claimant permission to appeal (13 N.Y.3d 702 [2009])
Labor Law § 241 (6) provides that
Thus, Labor Law § 241 (6) imposes a nondelegable duty
We found no nexus in Abbatiello where the plaintiff, a cable television repairman, was injured at a building owned by the defendant while responding to the complaint of a tenant who was a cable television subscriber. The plaintiff's employer had sent the plaintiff to the defendant's building to respond to the complaint. We emphasized that the "injured plaintiff was on the owner's premises not by reason of any action of the owner but by reason of provisions of the Public Service Law," which precludes landlords from interfering with the installation of cable television facilities on their property (Abbatiello, 3 NY3d at 51). Moreover, the owner was "powerless to determine which cable company [was] entitled to operate, repair or maintain the cable facilities on its property, since [pursuant to Public Service Law § 219] such decision lies with the municipality—the franchisor" (id. at 52). As we elaborated,
We contrasted Abbatiello with three earlier cases in which there was a nexus between the owner and the injured worker: Celestine v City of New York (86 A.D.2d 592, 593 [2d Dept 1982], affd 59 N.Y.2d 938 [1983] [in action under Labor Law § 241 (6), owner granted an easement to entity contracting for work leading to
We next applied the nexus test in Sanatass v Consolidated Inv. Co., Inc. (10 N.Y.3d 333, 341 [2008]), where a mechanic was injured while installing an air conditioning unit for a tenant of a commercial building owned by the defendant landlord. The tenant had agreed by lease not to make any changes to the premises without the owner's written consent, but nevertheless hired the plaintiff's employer without notifying the landlord. There, a nexus arose from the owner's lease of the premises to the tenant who, in turn, hired the plaintiff's firm to install the air conditioning unit. Further, the tenant's breach of the lease agreement requiring the owner's written consent for alterations "did not sever the nexus" (id. at 341-342). We distinguished Abbatiello, pointing out that although the owner in that case "was unaware of and did not consent to the plaintiff's presence on the property, these facts alone were not determinative of our affirmance of the dismissal of the complaint"—i.e., "Abbatiello did not announce a new notice requirement for section 240 (1) cases" (id. at 341). Rather, the difference between Abbatiello and Sanatass was the absence of a nexus in the former and its presence in the latter (id.). And we again explained that in "Celestine and its progeny . . . a nexus existed between the out-of-possession owner and the plaintiff, be it by lease, easement or some other property interest" (id.). Finally, we observed that "[u]nlike the cable technician in Abbatiello, the plaintiff in [Sanatass] . . . cannot conceivably be viewed as a `trespasser'" (id. at 342).
Scaparo is our most recent decision discussing the nexus prerequisite. There, the injured plaintiffs, employees of the Village of Frankfort, were connecting a sewer lateral from a newly constructed cemetery chapel owned by a church to the sewer main at a street intersection in the village (see 64 A.D.3d 1209, 1211 [4th Dept 2009]). The Herkimer County Industrial Development Agency (HCIDA) owned the property where the sewer lateral was installed; that property was within the Village's
Here, there was no lease agreement or grant of an easement or other property interest creating a nexus between claimant and the State. Claimant was performing excavation work on the State's premises "not by reason of any action of the [State] but by reason" of the water company's obligation to repair a break in its water line (Abbatiello, 3 NY3d at 51). And although claimant protests that the water company's repairs took care of the damage caused to the State-owned roadway by the leak and removed a traffic hazard in an emergency situation,
Claimant also urges that he "did not simply trespass on another's property," and tags the statutory requirement for a highway work permit as "[a] mere formality." But we have recognized that the "terms and conditions [of these permits] are not meaningless or optional; the permitee agrees to abide by them in order to obtain DOT's permission to work in the highway right-of-way" (Brothers, 11 NY3d at 260). The permit requirement allows DOT to inspect the work site to insure the safety of motorists, pedestrians and others in the work zone, and to safeguard the roadway's integrity. And as we indicated in
Finally, claimant suggests that a highway work permit may not have been necessary here because of the "emergency situation." DOT's regulations, however, make clear that the water company was required to have in hand either a job-specific or an annual permit before undertaking excavation of the roadway, notwithstanding any exigency (see 17 NYCRR 126.2, 129.1). There are simply different requirements for notifying DOT, depending on whether or not an emergency exists (compare 17 NYCRR 129.3 [a] [1] with 17 NYCRR 129.3 [a] [2]; see also 17 NYCRR 126.6 [specifying instructions to obtain highway work permits that apply to, among other things, "emergency repairs and public utilities"]). Additionally, even if it were true that the water company was entitled to enter the state highway right-of-way without a work permit in order to make emergency repairs, the State still would not be liable. In that circumstance, "[a]ny permission to work on the premises [would have been] granted upon compulsion and no relationship [would have] existed between [the State] and [the water company] or [claimant]" (Abbatiello, 3 NY3d at 52).
The outcome of this case would be different—as the State concedes—if the water company had secured a highway work
Although acknowledging that we have always "required as a condition of owner liability [under Labor Law § 241 (6)] no more than some connection, or `nexus,' between the owner and the plaintiff," the dissent never suggests how this minimal standard was met—i.e., what the nexus might have been—in this case (dissenting op at 63; cf. n 4 at 58). All we are told is that "[t]here is . . . no issue . . . as to whether" this unspecified nexus "was attenuated by out-of-possession status" as was purportedly the question in Sanatass (dissenting op at 64). Of course, in Sanatass there was a clear nexus—a lease—and the issue, as we articulated it, was not whether this nexus was "attenuated by [the landlord's] out-of-possession status," but whether it had been "sever[ed]" by the tenant's breach of a clause in the lease prohibiting the hiring of a contractor to make alterations in the premises without the landlord's written prior consent (see Sanatass, 10 NY3d at 341-342). We decided, of course, that this clause did not sever the nexus created by the lease.
Under the dissent's apparent analysis of our prior cases, a property owner who did not contract for the injury-inducing work is liable under Labor Law § 241 (6) unless the plaintiff's employer's entry onto the premises results from compulsion— i.e., permission unrelated to a lease, easement or some other property interest granted by the owner. This is certainly contrary to the way in which we have consistently explained and reconciled our precedents, and effectively eliminates the nexus requirement. More to the point, there is no reason to believe that this is what the Legislature intended. Indeed, such a liability scheme would do away with any motive or means for a property owner "to assure that only financially responsible and safety-conscious subcontractors are engaged so that a high standard of care might be maintained throughout the entire construction site"; and to "furnish[ ] an additional incentive to both insurer and insured to maintain safety standards necessary to avoid increased exposure to liability" (Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 301 [1978]).
Chief Judge LIPPMAN. (dissenting).
Claimant Alan Morton was injured when, after being "dispatched" by his water company employer to the site of a broken water main located beneath a State-owned roadway, the unshored sides of the area excavated to facilitate the repair fell upon him. He sought to recover for his injuries pursuant to Labor Law § 241 (6), and in the ensuing litigation established that his injuries were attributable to a violation of that statute's requirement that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein." He is now told, however, that he may not recover because the party against whom recovery is sought— and, indeed, the only party potentially answerable in damages under the present circumstances—the State, had not given permission for the repair. It is not disputed that the State would otherwise be statutorily liable by reason of its ownership of the accident site.
The question, then, is whether the failure of claimant's employer to obtain permission should operate to deprive claimant of the remedy the Legislature has provided in enacting Labor Law § 241
Because the strict liability statute at issue nowhere conditions an owner's liability upon consent to the injury producing work, and because we have expressly held that an owner may not avoid responsibility under the strict liability provisions of the Labor Law by interpolating such a requirement as a condition of recovery, I respectfully dissent.
The strict liability provisions of the Labor Law, sections 240 and 241, do not contain any provision conditioning the liability
Abbatiello v Lancaster Studio Assoc. (3 N.Y.3d 46 [2004]) should not be read to alter the Labor Law's essential allocation of responsibility. There, liability was sought against a building owner for injuries sustained by a technician in the course of a cable television service call for which access to the owner's building was compelled by statute. In deciding that the owner could not in those particular circumstances be held strictly accountable under the Labor Law, the Court observed,
After Abbatiello, there was some belief that an owner's knowledge of and permission for the work in the course of which the sued upon injuries were sustained were generally necessary conditions of owner liability under the Labor Law's strict liability statutes (see e.g. Sanatass v Consolidated Inv. Co., Inc., 38 A.D.3d 332 [2007], revd 10 N.Y.3d 333 [2008]; Morales v D & A Food Serv., 41 A.D.3d 352 [2007], revd 10 N.Y.3d 911 [2008]), but
We at the same time clarified that Abbatiello, properly understood in light of the governing statutes, their often acknowledged protective purposes and our consistent precedents, required as a condition of owner liability no more than some connection, or "nexus," between the owner and the plaintiff (id. at 341).
While we had noted in Abbatiello that the required nexus might be supplied by the circumstance that an out-of-possession owner had granted a property interest in the premises to the party who had afforded the consequently injured worker access, our decision in Abbatiello turned not upon the absence of a connective property interest, or even upon the absence of permission, but upon the legal incapacity of the owner to withhold access for the injury producing work (3 NY3d at 52). Similarly, in the subsequently decided case of Scaparo v Village of Ilion (13 N.Y.3d 864 [2009]), we upheld the dismissal of a Labor Law § 241 (6) claim upon the ground that the owner "had no choice but to allow the Village [the employer of the injured plaintiffs] to enter its property pursuant to a right-of-way" (id. at 866).
Our decision in Sanatass, by contrast, addressed the situation only hypothetically adverted to in Abbatiello—whether an out-of-possession owner "by a lease agreement or grant of an easement, or other property interest" (Abbatiello, 3 NY3d at 51) retained a sufficient nexus with the property and the plaintiff's work upon it to qualify as an "owner" under the Labor Law's strict liability statutes. We held that the out-of-possession owner there did retain the requisite connection, since it had leased the premises to the party that had afforded access to the worker subsequently injured upon the premises in the course of performing alterations. In so holding, we acknowledged that the lease in fact contained a provision, allegedly violated by the lessee, requiring the owner's written permission for the work. Clearly differentiating between nexus and permission, we
The majority now, ignoring the crucial distinction made in Sanatass, equates nexus with permission and, in so doing, affords the nexus requirement a dimension incompatible with the strict liability provisions at issue and their remedial purpose.
There is, of course, no issue in this case as to whether defendant's nexus to the work site and claimant was attenuated by out-of-possession status; defendant owned and was in possession of the roadway where the accident took place. The only remaining nexus issue, then, if Abbatiello and its progeny are to be followed, is whether defendant's ownership interest in the work site was rendered nugatory by some countervailing legal compulsion effectively divesting defendant of its right to exclude claimant's employer from its premises. Obviously, there was no such compulsion. It is, to the contrary, defendant State's strenuous contention that, pursuant to Highway Law § 52, access for the work performed by claimant's employer was legally contingent upon defendant's issuance of a permit. This provision in the owner's favor, like the lease provision in Sanatass, may well have been violated by the worker's unpermitted access of the property, but there is no reason why this defendant any more than the defendant in Sanatass should therefore avoid the responsibilities of ownership under the Labor Law.
Labeling claimant a "trespasser"—one whose presence on the premises was not permitted—is only another way of importing into the Labor Law a coverage condition of owner permission at variance with the statutory scheme. What is relevant is, rather, whether the worker is "employed" to do work otherwise falling within the statutory coverage criteria (see Labor Law § 241 [6]). There is no question that claimant was legitimately employed to do the very work he was doing at the time of his injury, or that he was present upon defendant's roadway at the direction of his employer, or that defendant, although empowered to deny access, did not. That defendant may have been unable to exercise its power to do so by reason of the water company's failure to seek a permit for the work cannot be determinative of claimant's
The Court does today precisely what it said would be impermissible in Sanatass: it has permitted an owner to "engraft" onto the Labor Law a limitation upon the law's coverage at odds with the statutory scheme (see Sanatass, 10 NY3d at 342). True, here it is the State relying upon an enactment in its favor, and not a private party relying upon a contract, that seeks to benefit from the proposed limitation, but there is no evidence that the Legislature, in enacting the statute upon which the defendant bases its claim of noncoverage, intended to truncate the protections of the Labor Law. And, in the absence of such evidence, the State's dependence upon Highway Law § 52, an apparently modestly intended provision, should be as unavailing as the owner's reliance upon the lease provision in Sanatass. If the protections of the Labor Law are to be abridged that is a matter to be frankly undertaken by the Legislature; it should not be accomplished, as it is now, by judicial invention.
Pervading the majority opinion is the very basic misunderstanding, nowhere encouraged in the governing statute or our case law, that in every strict liability Labor Law action "nexus" must be separately demonstrated as an element of the claim. This has never been true. Ordinarily, all that is necessary to demonstrate the liability of an "owner" under the subject provisions is a showing of a statutory violation and causation. Ownership itself ordinarily suffices to establish any connection with the property and the work upon it necessary to sustain liability. An additional showing of connection has only been deemed necessary where an owner is out-of-possession
Strict liability statutes invariably produce some harsh outcomes, but that is not a reason to deny them effect. The Legislature has determined to impose extensive duties upon owners to assure worker safety and provide reliable recourse in the event of construction related injury. Plainly, defendant was not at fault in connection with claimant's harm; it was held accountable simply by reason of its ownership of the premises where the accident occurred. Owners, however, are not helpless to protect themselves from the exposure created by the Labor Law. They can purchase insurance to guard against the risk of statutory liability, and can require contractors to do the same and name them as additional insureds.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.
