The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a roof after a toe board became detached from the roof:
“Plaintiff[s] met [their] initial burden by establishing that [plaintiff’s] injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk” … . “[T]he question of whether [a] device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its [intended] function of supporting the worker and his or her materials” … . Here, plaintiffs established that, on the morning of the accident, plaintiff had been instructed to work on a pitched roof on which “toe boards,” i.e., two- by six-inch boards nailed directly to the roof approximately two to three feet up from the bottom edge of the roof, had already been installed, and defendants failed to submit non-speculative evidence to the contrary. There is no dispute that the toe boards detached from the roof while plaintiff was working, causing him to fall and sustain injuries. The failure of that safety device constituted a violation of Labor Law § 240 (1) as a matter of law …, and that violation was, at minimum, ” a contributing cause of [plaintiff’s] fall’ “… . Thus, contrary to defendants’ contentions, plaintiff’s alleged failure to utilize other safety devices available on the job site, including his alleged failure to reinstall the toe boards with additional supporting roof jacks, raises no more than an issue of contributory negligence … . Provens v Ben-Fall Dev., LLC, 2018 NY Slip Op 05426, Fourth Dept 7-25-18
LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DEMONSTRATED THE FAILURE OF A TOE BOARD WAS AT LEAST A CONTRIBUTING CAUSE OF PLAINTIFF’S FALL FROM A ROOF, CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY AS A MATTER OF LAW (FOURTH DEPT))