The opinion
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
“to achieve the purpose of protecting workers by placing ‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’ (Koenig v Patrick Constr. Corp., 298 NY 313, 318 )” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]).
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 *62 of an owner or any other statutorily responsible party upon that party’s consent to, permission for, control, or even knowledge, of the injury producing activity. The precautionary obligations imposed under those statutes are absolute and nondelegable and, accordingly, their discharge cannot depend upon whether in a particular case the owner, contractor or agent had notice of or allowed the work (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993]; Coleman v City of New York, 91 NY2d 821 [1997]); the imperative behind these enactments is that someone, other than the worker, must bear ultimate responsibility for work site safety. The onus is placed on owners, contractors and their agents not because they are invariably situated and apprised to assure the safety of the workplace, but because, generally, they are the parties best positioned and equipped to meet that essential objective (Allen v Cloutier Constr. Corp., 44 NY2d 290 , 301 [1978]).
Abbatiello v Lancaster Studio Assoc. ( 3 NY3d 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,
“Lancaster [the owner] cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law § 240 (1) for cable television repair people of whom it is wholly unaware. Supreme Court correctly noted that, but for Public Service Law § 228, plaintiff would be a trespasser upon Lancaster’s property and Lancaster would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between Lancaster and Paragon or the plaintiff’ (id. at 52).
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 AD3d 332 [2007], revd 10 NY3d 333 [2008]; Morales v D & A Food Serv., 41 AD3d 352 [2007], revd 10 NY3d 911 [2008]), but *63 we addressed this misconception in Sanatass, where we reiterated,
“our precedents make clear that so long as a violation of the statute proximately results in injury, the owner’s lack of notice or control over the work is not conclusive—this is precisely what is meant by absolute or strict liability in this context. We have made perfectly plain that even the lack of ‘any ability’ on the owner’s part to ensure compliance with the statute is legally irrelevant (see Coleman, 91 NY2d at 823 )” (10 NY3d at 340 [citation omitted]).
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 NY3d 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 plaintiffs 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 *64 rejected the contention that violation of the lease provision requiring permission for the work could vitiate the nexus necessary to sustain the strict liability claim against the owner (Sanatass, 10 NY3d at 341-342 ). We recognized that the injured worker’s right of recovery could not, consistent with the Labor Law’s dominant protective purpose, be made to depend upon legal claims the owner might have over against third parties (id.).
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 inore 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 *65 right to the Labor Law’s protection, particularly where there is no reason to suppose that defendant would have denied access for the emergently necessary repairs. 1 Under the holding now embraced by the majority no worker will know as he or she sets off to a work site at the direction of his or her employer whether he or she will be covered under the Labor Law’s umbrella; there will always be the possibility of a subsequent claim by the owner that permission for the work was not given—that the worker was in the eyes of the owner and pursuant to some agreement or enactment about which the employee cannot be expected to have been aware, a “trespasser.”
The Court does today precisely what it said would be impermissible in Sanatass: it has permitted an owner to “en-graft” 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 2 —but we have never actually found a lack of nexus on that ground—or where there *66 is some relevant legal impediment to the owner’s assertion of his ownership prerogatives, as in Abbatiello and Scaparo , where access to the premises is statutorily or otherwise legally compelled notwithstanding any right of exclusion the owner might otherwise have. There has never, until today, been a case in which an in-possession fee owner in no way legally disabled from the assertion of its ownership rights has been held to have an insufficient connection to those working upon the property to support statutory liability under the Labor Law. This is a significant and unwarranted departure that the Legislature may well wish to curtail.
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. 3 They can, in addition, seek through third-party litigation to place financial responsibility for liability incurred on purely statutory grounds with the party actually at fault. What they should not be permitted to do, however, is to unilaterally tinker with the Labor Law’s basic protective ambit and thereby leave an injured worker, otherwise deserving of the law’s protection, without recourse. Accordingly, I dissent from the Court’s determination to afford such permission and would reverse and rule in claimant’s favor.
*67 Judges Graffeo, Smith, Pigott and Jones concur with Judge Read; Chief Judge Lippman dissents and votes to reverse in a separate opinion in which Judge Ciparick concurs.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.
. Indeed, it appears from the trial testimony that a permit would have routinely issued.
. While in our affirming memorandum in Scaparo we without explanation glossed “out-of-possession” as without contractual relationship ( 13 NY3d *66 at 866 ), it does not appear that any departure from Abbatiello was intended and the substituted language now read as broadening the separate nexus requirement was, in any event, dicta.
. Defendant, presumably not out of any charitable impulse on the part of the water company, was, in fact, named as additional insured in the water company’s liability policy. While the State, and now the majority, suggests that defendant’s failure to realize the benefit of that coverage in this case is attributable to the water company’s noncompliance with the state permitting law, the suggestion is belied by express findings in the underlying insurance litigation that the State failed to make reasonable efforts to ascertain the existence of such coverage and unreasonably delayed in filing a claim, even after it had learned of the coverage.