Collapse of Makeshift Scaffold Entitled Plaintiff to Summary Judgment in Labor Law 240(1) Action—Plaintiff’s Comparative Negligence Is Not a Defense

The Fourth Department determined summary judgment should have been granted to the plaintiff in the Labor Law 240 (1) action. Plaintiff was not provided with a scaffold or safety equipment.  Plaintiff fashioned a makeshift scaffold which collapsed.  The court noted plaintiff’s comparative negligence (in the construction of the scaffold) is not a defense under Labor Law 240 (1):

We conclude that “[t]he fact that the scaffold collapsed is sufficient to establish as a matter of law that the [scaffold] was not so placed . . . as to give proper protection to plaintiff pursuant to the statute” … . Contrary to defendant’s contention, there is no issue of fact whether the safety equipment provided to plaintiff was sufficient to afford him proper protection under Labor Law § 240 (1). The only safety device provided to plaintiff at the work site was a 14-foot-long pick [an aluminum plank]. “There were no harnesses, lanyards, safety lines, or similar safety devices available for use to prevent [plaintiff’s] fall” … . To perform the work of installing siding on the building, plaintiff therefore had to create what the court accurately referred to as a “makeshift” scaffold by placing one end of the pick in the shovel of a backhoe and the other end between two pieces of wood he or a coworker nailed into the side of the building. “[T]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device” … . Bernard v Town of Lysander, 2015 NY Slip Op 00050, 4th Dept 1-2-15