Stringer v. Musacchia

• Decision Date: 21 October 2008
• Docket Number: No. 158.,158.
• Citation: 898 N.E.2d 545,11 N.Y.3d 212
• Parties: Eric STRINGER, Appellant, v. Barbara MUSACCHIA, Individually and as Trustee of the John Musacchia Residual Trust B-1, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

898 N.E.2d 545

11 N.Y.3d 212

Eric STRINGER, Appellant, v. Barbara MUSACCHIA, Individually and as Trustee of the John Musacchia Residual Trust B-1, et al., Respondents.

No. 158.

Court of Appeals of New York.

October 21, 2008.

Lewis & Stanzione, Catskill (Ralph C. Lewis, Jr., of counsel), for appellant.

Bailey, Kelleher & Johnson, P.C., Albany (Thomas J. Johnson of counsel), for respondents.

OPINION OF THE COURT

GRAFFEO, J.

The strict liability provisions of Labor Law § 240(1) apply to employees but not to persons who volunteer to work on a project. In this case, we are asked to decide whether plaintiff was entitled to section 240(1) protection when he built a shed for an acquaintance while on a hunting trip. Based on the facts of this case, we conclude that plaintiff was not covered under the statute.

In 2001, defendant Barbara Musacchia was the sole trustee of the John Musacchia Residual Trust B-1 that owned property in Greene County. Her son, John Musacchia, Jr., held hunting excursions on the land, including an annual turkey hunt in May. Frequently invited were celebrity guests who were filmed for television productions. Certain friends of Musacchia were invited as well, but these hunters were asked to do chores around the property in the afternoons following the morning hunts. All of the guests slept and ate in the residence located on the property.

Plaintiff Eric Stringer, a resident of Georgia, was an avid archer who met Musacchia at an archery exhibition. Stringer had experience in the construction industry and Musacchia hired him to construct a trade show display for the family's archery company. Stringer was interested in joining the turkey hunt in May 2001 and Musacchia realized that extending the invitation could be beneficial—for some time he had wanted to erect an implement shed on the Greene County property to house machinery but an earlier $6,000 estimate from a local contractor had been rejected by his mother as too costly. After discussing the project with Stringer, Musacchia told him that he could participate in the hunt if he was willing to build the shed in the afternoons. Stringer agreed and purchased a plane ticket to New York, arriving in Greene County on or about May 1, 2001.

For more than a week after his arrival, Stringer hunted on the property and worked on the shed. Then, on May 10th, as he was standing on an extension ladder attempting to install a rafter, the ladder "kicked out" beneath him and he fell 8 to 10 feet to the ground onto a bag of concrete. Musacchia later found Stringer injured and drove him to a hospital, where doctors discovered that his Achilles tendon had been severed. Stringer returned home to Georgia for a series of surgeries.

Stringer commenced this action against Barbara Musacchia, individually and as trustee of the family trust, and the trust itself, asserting causes of action premised on common-law negligence and Labor Law §§ 200, 240(1) and § 241. The parties cross-moved for summary judgment. Supreme Court granted defendants' motion, in part, by dismissing the negligence and section 200 and 241 claims, but granted plaintiff summary judgment as to liability on the section 240(1) cause of action, concluding that Stringer was entitled to the statute's strict liability protections because he was acting as an "employee" when he was building the shed (2006 WL 6105178).¹ The Appellate Division, with two Justices dissenting, modified by dismissing the section 240(1) claim, ruling that Stringer was a volunteer because he was not obligated to complete the shed and did not receive any monetary compensation (46 A.D.3d 1274, 848 N.Y.S.2d 762 [2007]). Plaintiff appeals as of right on the two-Justice dissent, and we now affirm.

The primary purpose of Labor Law § 240(1) is to extend special protections to "employees" or "workers" (see Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577, 561 N.Y.S.2d 892, 563 N.E.2d 263 [1990]; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985]). Inclusion in this "special class for whose benefit absolute liability is imposed" requires a plaintiff to "demonstrate that `he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent'" (Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 50-51, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004], quoting Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032 [1979]). As a result, we have held that the statute does not apply to a volunteer who performs a service gratuitously (see Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d at 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032; Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d at 577, 561 N.Y.S.2d 892, 563 N.E.2d 263). Aside from these references in Whelen and Mordkofsky, however, we have not had the opportunity to elaborate on what differentiates an employee from a volunteer.

Analysis of this issue requires consideration of the traditional parameters of employer-employee relationships in conjunction with the Legislature's intent in enacting Labor Law § 240(1).² The term "employee" is statutorily defined as a "mechanic, workingman or laborer working for another for hire" (Labor Law § 2[5] [emphasis added]). When a person has been hired, at least three factors are usually present. First, there is the voluntary undertaking of a mutual obligation—the employee agrees to perform a service in return for compensation (usually monetary) from the employer, thereby revealing an economic motivation for completing the task (see Black's Law Dictionary 565 [8th ed.] [an "employer" is the person who "pays the worker's salary or wages"]). Second, although not an essential factor, an employer may exercise authority in directing and supervising the manner and method of the work (see e.g. Daniello v. Holy Name Church, 286 A.D.2d 268, 269, 730 N.Y.S.2d 56 [1st Dept.2001]; Black's Law Dictionary 564 [8th ed.] [a person is an "employee" if "the employer has the right to control the details of work performance"]). Third, the employer usually decides whether the task undertaken by the employee has been completed satisfactorily.

Corresponding with these aspects of employer-employee relations is the purpose that underlies Labor Law § 240(1). In enacting the statute, the Legislature "intended to place `ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' rather than on the workers themselves" (Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 338, 858 N.Y.S.2d 67, 887 N.E.2d 1125 [2008], quoting Mem of Senator Calandra and Assemblyman Amann, 1969 N.Y. Legis Ann, at 407). In addition, the Appellate Divisions have recognized that section 240(1) was not intended to make...