Latest High Court Decision Takes Common Sense Approach to Scaffold Law

By: Scott Hobson

A recent ruling by the New York Court of Appeals, the highest court in the state, narrowly upheld the lower Supreme Court’s order which dismissed a Scaffold Law suit in its entirety.

The suit, Salazar v. Novalex Construction Corp., et al., was decided by the Court of Appeals on November 21, 2011, by a margin of 4 to 3. The details of the incident which gave rise to the suit are described in the majority’s opinion, as authored by Judge Pigott:

“Plaintiff Raul Salazar was injured in May 2004, while working in the basement of a Brooklyn building undergoing renovations. The property was owned by 96 Rockaway, LLC. Salazar was employed by T-Construction Co., Inc.; the general contractor was Novalex Contracting Corp. The accident occurred in the largest room of the basement, which had a trench system, for piping. Salazar and the other workmen were laying a concrete floor. They were directed to pour and spread concrete over the entire basement floor, including the trenches. Before he began work on the day he was injured, Salazar looked for, and visually located, the trenches. 

The concrete flowed from a truck into wheelbarrows placed in the basement, via a chute fed through a window. Workmen poured the wet concrete from the wheelbarrows onto the floor of the basement, where Salazar and others “pulled” the concrete with rakes, ensuring that the floor would be level. As Salazar explained the next stage of the process at his deposition, the trench system fills with concrete “by itself because the concrete runs and it fills it out . . . the concrete kind of slides down or runs down” into the trenches.

Salazar was injured after he stepped into a trench that was partially filled with concrete. He had been walking backwards across the floor, “pulling” concrete with a rake held in front of him, and looking forward, rather than in his direction of motion. As Salazar recalled the incident, “one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards, . . . my foot got inside, into that hole.” After Salazar’s right foot hit the bottom of the trench, his right leg folded beneath him. Before being assisted out of the trench by his coworkers, Salazar tried to pull his leg out “on my own, myself, and that’s how I hurt myself.””

The majority noted several significant details of the case. Most notably, covering the trench would have prevented the trench from filling with concrete, which was necessary to complete the project correctly.  “…Labor Law 240 (1) [the Scaffold Law], the majority opinion stated, “should be construed with a common sense approach to the realities of the workplace at issue…”

Hopefully, this common sense approach is echoed in future cases. Nonetheless, this decision does not – by any stretch of the imagination – diminish the need for rational reform to the law. If a plaintiff is injured because of his or her own negligence or intoxication, defendants must be allowed to use evidence of such negligence in their defense. In a case such as this, where the plaintiff admitted to the court that his actions were the cause of his injury, the need for a fairer comparative negligence standard is especially difficult to deny.

The purpose of the Scaffold Law, as it was originally intended, is to protect workers from unsafe working conditions. As it has been historically construed however, the Scaffold Law has only served to disconnect workers from any personal responsibility, which is inconsistent with the goal of improved safety.


For more information on the Scaffold Law, visit


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