Statute vs. Ordinance: A Review Of Judicial Analysis Of Labor Law Sec. 241(6)

• Published date: 15 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Frederick McRoberts

New York, N.Y. (June 2022) - In recent years, there has been a concerning development regarding judicial analysis of Labor Law ' 241(6). Specifically, Courts have - incorrectly - applied a somewhat "absolute liability" interpretation to Labor Law ' 241(6). For example, in Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept. 2019), the Court ruled that:

"plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law ' 241(6) cause of action by showing that there were violations of certain relevant Industrial Code sections, and that those violations were a proximate cause of his injuries."

This ruling suggests that, if evidence shows a violation, and said violation proximately caused the incident, then a party is entitled to summary judgment as to liability. In other words, the violation of an Industrial Code, which imposes a specific duty, constitutes negligence per se. One should note that this incorrect analysis is far from an isolated incident in recent years. ¹ However, Labor Law ' 241(6) is not an "absolute liability" statute, like Labor Law ' 240(1), and these recent rulings are contrary to decades of jurisprudence.

New York Courts have long recognized a distinction between state statutes and local ordinances or administrative rules and regulations. As a rule, violation of a state statute that imposes a specific duty constitutes negligence per se or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence. Elliott v. City of New York, 95 N.Y.2d 730 (N.Y. 2001); See also, Fluker v. Ziegele Brewing Co., 201 N.Y. 40 (N.Y. 1911); Amberg v. Kinley, 214 N.Y. 531 (N.Y. 1915); Schumer v. Caplin, 241 N.Y. 346 (N.Y. 1925); Teller v. Prospect Height Hospital, 280 N.Y. 456 (N.Y. 1939); Major v. Waverly & Ogden, Inc., 7 N.Y.2d 332 (N.Y. 1960).

The Constitution of the State of New York commits to the State Legislature alone the power to enact a statute. And a statute, once passed, remains fixed until repealed or amended. The legislature can confer upon a commission, officer, board, or municipality the power to make rules and ordinances governing the administration of their respective affairs. For example, in Labor Law 241(6), the "commissioner may make rules [i.e., Industrial Code] to carry into effect the provisions of this subdivision, and owners and contractors ... shall comply therewith." However, the rules promulgated by a board or commission, unlike a statute, may be suspended, modified, or varied, depending upon conditions or the "caprice of any officer, board or individual." Based upon these considerations, New York Courts have long and repeatedly held that a violation of an ordinance or code, if it has some connection with the...