Labor Law 240 & 241 Construction Injury Claims

If you were hurt on a construction site in New York, workers’ compensation is not the whole of it. It may not even be the larger part of it.

Comp pays your medical treatment and a portion of your lost wages, and it pays regardless of whose fault the accident was. What it does not pay is anything for pain and suffering, and it is capped in ways that have very little to do with what the injury actually cost you.

New York’s Labor Law is the other half. It is one of the strongest worker protection statutes in the country, and it exists for one reason: construction work kills and maims people, and the Legislature decided the people who control the site should carry that risk rather than the person holding the tool.

Two claims, running at the same time

You cannot sue your own employer. Workers’ Compensation Law § 11 makes comp the exclusive remedy against the company that employs you, and that is the trade-off comp is built on.

But on a construction site, your employer is usually not the only company involved. There is a property owner. There is a general contractor or construction manager. There are other subcontractors, equipment suppliers, and sometimes an engineer or architect. Those are separate parties, and they are not protected by the comp bar.

So the typical case is two cases: a workers’ compensation claim that starts paying now, and a third-party lawsuit under the Labor Law against whoever else bears responsibility. They run in parallel, they affect each other, and the interaction is where cases get won or quietly lost.

Labor Law § 240 — the scaffold law

Section 240(1) requires owners, contractors and their agents to furnish scaffolding, hoists, ladders, slings, braces, ropes and similar devices, “so constructed, placed and operated as to give proper protection” to workers doing construction, demolition, repair, alteration, painting, cleaning or pointing.

Two features make it unusually powerful.

The duty cannot be delegated. An owner or general contractor is liable for a violation whether or not it supervised the work, hired the crew, or ever set foot on the site. “We left that to the sub” is not a defense to a § 240(1) claim.

Your own carelessness does not reduce what you recover. In most injury cases in New York, a jury assigns a percentage of fault to the injured person and the award drops by that percentage. Under § 240(1) it does not work that way. Once a violation is established and it caused the injury, comparative negligence is not a defense.

That protection is why the statute is fought over so hard, and it is worth being accurate about its edges rather than overselling it.

What “absolute liability” does and does not mean

You will see § 240(1) described as an absolute liability statute. That is shorthand, and taken literally it is wrong in a way that matters.

The Court of Appeals has been explicit that owners and contractors are not insurers. Liability still depends on proving two things: that the statute was violated, and that the violation caused the injury. An accident on a construction site, standing alone, does not establish either. What “absolute” actually describes is what happens after those two things are proven — at that point the defendant cannot chip away at the award by arguing you were careless too.

The defense that does work: sole proximate cause

Because your negligence cannot reduce a § 240(1) award, defendants argue instead that your conduct was the only cause — that there was no statutory violation at all, just a worker who made a choice.

The courts have set out what that requires. A defendant generally has to show that adequate safety devices were readily available at the site, that you knew they were available and that you were expected to use them, and that you chose for no good reason not to. Every element has to be there. A supervisor testifying that he once told the crew to use harnesses does not carry it if the harnesses were locked in a trailer.

And the logic cuts both ways: if a violation of the statute was a cause of the accident, then you were not the sole cause, and the defense collapses.

It is about gravity, not about falling

The common assumption is that § 240(1) covers falls from height. It is broader than that, and narrower in a different direction.

What the statute reaches is harm flowing from a physically significant elevation difference — a worker falling, an object falling, or a load whose weight is being controlled against gravity. The Court of Appeals has held that it does not matter whether the injury came from a fall at all. A worker hurt while acting as a human counterweight lowering a heavy reel down a stairway was covered, though he neither fell nor was struck.

Courts have also refused to adopt a flat rule that an object standing on the same level as the worker is outside the statute. A tall, heavy object that topples can still present an elevation-related risk.

What falls outside is injury that is not really about gravity. A back injury from working in an awkward position on a poorly built scaffold has been held not to be a § 240(1) case, because the harm did not come from the elevation differential.

The homeowner exception

The statute carves out owners of one- and two-family dwellings who contract for work but do not direct or control it. Both halves matter. A homeowner who hires a contractor and stays out of the way is generally outside the statute; one who runs the job may not be. On Staten Island, where a great deal of the work is on exactly that kind of house, this exception comes up constantly.

Labor Law § 241(6) — the wider net

Section 241(6) covers construction, excavation and demolition work generally. There is no height requirement, which makes it the section that reaches accidents § 240 cannot: tripping hazards, debris, inadequate lighting, unguarded openings, unsafe excavation.

It works differently, and the difference is technical but decisive.

A § 241(6) claim has to rest on the violation of a specific provision of the Industrial Code — the State’s construction safety regulations at 12 NYCRR Part 23. A rule that commands something concrete will support the claim. A rule that merely says equipment must be “proper” or conditions must be “adequate” will not, because that is just a restatement of ordinary reasonable care. Cases are lost at this step, on a regulation that sounded fine until someone looked at whether it was specific enough.

The other difference: under § 241(6), a violation is evidence of negligence rather than automatic liability, and comparative fault is available to the defense. If a jury finds you thirty percent responsible, a § 241(6) award drops by thirty percent. A § 240(1) award does not.

That is why these claims are usually pleaded together rather than chosen between.

Labor Law § 200 and ordinary negligence

Section 200 is the common-law duty to provide a safe place to work, written into the statute. It is the weakest of the three because it requires actual fault.

Where the claim is about how the work was being done, you generally have to show the defendant supervised and controlled that work. Where it is about a dangerous condition of the property, you have to show the defendant created it or knew about it, or should have. Comparative fault applies.

It still matters, because it reaches defendants and situations the other two sections do not.

The deadline problem, and why it is worse than people think

For an ordinary construction site owned by a private company, you generally have three years from the accident to bring a personal injury lawsuit, and two years from the date of death for a wrongful death claim.

That changes completely when a public entity owns the site — a school, a housing development, a transit project, a city building. Then you are usually looking at a notice of claim within 90 days of the accident, and suit within one year and 90 days. Miss the 90 days and you are asking a judge for permission to proceed rather than proceeding.

Public work is everywhere in this city, and the sign on the fence does not always say who owns the property. Different public entities also operate under different statutes with different requirements, so the answer has to be checked against the specific owner rather than assumed.

This is the single strongest argument for making a phone call early. The comp claim is comparatively forgiving about timing. The third-party case is not.

How the comp claim and the lawsuit affect each other

The compensation carrier that has been paying your benefits has a lien on what you recover in the third-party case. That is the part most people are told about.

Two things they are usually not told:

The lien attaches to the recovery after the cost of producing it comes off, including attorney’s fees. The carrier does not get the benefit of your lawsuit for free, and it can be required to bear its share of what the recovery cost to obtain.
You generally need the carrier’s written consent before settling the third-party case, or a court order approving it. Settling without one can put your future compensation benefits at risk — which is a genuinely awful way to find out about a rule.

Our page on New York workers’ compensation covers the comp side, and the construction accidents page covers the comp claim for site injuries specifically.

What to do now, if it just happened

Write down the exact address, and the name on the permit board or the fence. That is how the owner and general contractor get identified later.
Note what you were standing on or working from, and what was or was not provided — the ladder, the scaffold, the harness, the anchor point.
Get the names of the people who saw it. Crews change and companies rotate off jobs.
Report the injury and start the comp claim. It does not weaken the lawsuit; the two go together.
Photograph the equipment involved if you can, before it is repaired, replaced or removed.

Frequently asked questions

Can I sue if I am already collecting workers’ compensation?

Yes, as long as the lawsuit is against someone other than your employer. Workers’ Compensation Law § 11 bars claims against your own employer, but the site owner, general contractor and other subcontractors are separate parties. Collecting comp does not close the door on a Labor Law case.

Does it matter that I was partly at fault?

Under Labor Law § 240(1) it does not reduce your recovery once a violation and causation are established. Under § 241(6) and § 200 it does, because comparative fault applies to those claims. This is one of the main reasons the sections are pleaded together.

I did not fall. Is it still a scaffold law case?

It may be. The statute is about harm from a physically significant elevation difference, not about falling as such. Being struck by a falling object, or injured controlling a heavy load against gravity, can fall within it. Whether it does depends on the facts.

I am undocumented. Can I still bring a claim?

This comes up often on construction sites and it deserves a direct answer from an attorney rather than a paragraph on a web page. Call and ask. The consultation is free and confidential.

How long do I have to sue?

Generally three years from the accident against a private owner or contractor, and two years from the date of death in a wrongful death case. If a public entity owns the site, a notice of claim is usually due within 90 days and suit within one year and 90 days. Different public entities have different rules, so the owner has to be identified early.

Can my employer be brought into the lawsuit?

Sometimes. An owner or contractor being sued can seek contribution from your employer where there is a written indemnification agreement signed before the accident, or where the injury meets the narrow statutory definition of a grave injury. That is a fight between the companies rather than something you bring.

The homeowner hired me directly. Do I have a case?

Owners of one- and two-family dwellings are excepted from §§ 240 and 241 when they contract for work but do not direct or control it. If the homeowner was running the job, the exception may not apply. There may also be other responsible parties and other insurance.

Talk to a Staten Island construction injury attorney

If you were hurt on a site and you are not sure whether there is anything beyond the comp claim, that is exactly the question worth asking early, while the deadlines are still comfortable and the evidence is still there.

The Law Offices of Frank J. Dito, Jr. represents injured workers in New York. Call 718.701.2776 (toll-free: 800.310.5520) or contact us for a free consultation. Consultations are free and there is no fee unless you win.

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