You are here: / / ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL...

ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate:

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” … . Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground “demonstrates that it was not so placed . . . as to give proper protection to [him]” … . We therefore conclude that plaintiff’s accident was caused by an elevation-related risk as contemplated in section 240 (1) … .

We reject defendant’s contentions that the sole proximate cause of the accident was plaintiff’s failure to observe the drain hole and position the scaffold in such a manner to avoid it. “[T]here can be no liability under [Labor Law § ] 240 (1) when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … , and “[a] defendant is entitled to summary judgment dismissing a Labor Law § 240 (1) cause of action or claim by establishing that . . . the plaintiff’s conduct was the sole proximate cause of the accident” … . Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident … . Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his “actions . . . render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]”  … . “Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] cannot be solely to blame for it’ ” … . Wolf v Ledcor Constr. Inc., 2019 NY Slip Op 06263, Fourth Dept 8-22-19

 

You might also like
PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
Neglect Finding Based on Children’s Exposure to Bloody Domestic Violence Affirmed’ Requirements for Admission of Police Reports Explained
Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench Trial and for Piercing the Corporate Veil Explained
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT).
Accepting a Verdict Before Responding to Jury Requests for Further Instructions and a Readback of Testimony Was a Mode of Proceedings Error Requiring a New Trial
DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).
JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S REQUEST FOR NEW COUNSEL AFTER LEARNING DEFENDANT HAD FILED A GRIEVANCE, NEW TRIAL ORDERED (FOURTH DEPT).
SPEED BUMP NOT OPEN AND OBVIOUS AS A MATTER OF LAW.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

IN A TRIAL SUBJECT TO INSURANCE LAW 5102 THE TERM “SERIOUS INJURY”... SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED...