Two-to-Five-Foot Fall from Edge of Roof to Scaffolding Supported Labor Law 240 (1) Cause of Action

The Third Department determined a two-to-five foot fall from the edge of a roof to scaffolding properly survived summary judgment on the Labor Law 240(1) cause of action:

Liability under Labor Law § 240 (1) arises when a worker’s injuries are “‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … . Ordinarily, the adequacy of a safety device is a question of fact, unless the device “‘collapses, slips or otherwise fails to perform its function of supporting the worker'” … .

The distance that Scribner fell from the roof ledge to the scaffolding is disputed. Claimant alleged, in the bill of particulars, that the scaffolding was two feet below the ledge, while Scribner and the project supervisor asserted in their deposition testimony that the scaffolding was four to five feet below the ledge. Regardless of whether the height differential was two, four or five feet, Scribner’s fall is the type of elevation-related risk to which Labor Law § 240 (1) applies … .

The parties’ submissions also raise a question of fact as to whether the scaffolding afforded … adequate protection and, if not, whether the absence of an appropriate safety device was the proximate cause of his injuries … . Scribner v State of New York, 2015 NY Slip Op 05993, 3rd Dept 7-9-15