PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT HARNESSES MAY HAVE BEEN AVAILABLE DID NOT RAISE A QUESTION OF FACT SUFFICIENT TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Although plaintiff was a ground worker the on roofing job, he fell from the roof alleging that a toe board “gave out.” The fact that plaintiff was not wearing a harness, in the face of allegations harnesses were available, was not enough to defeat plaintiff’s motion. The dissenters argued the evidence that all the toe boards were in tact after the accident raised a question of fact whether that safety device failed:

… [P]laintiff met his initial burden on that part of the motion by establishing that his ” injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . Specifically, plaintiff submitted his deposition testimony, wherein he stated that the toe board failed, causing him to fall from the roof. He also testified that he was not provided with a harness and that there were no available harnesses nearby. …

The ” presence of [other safety devices] somewhere at the worksite’ does not [alone] satisfy defendants’ duty to provide appropriate safety devices” … . …

… “[T]he mere failure by plaintiff to follow safety instructions” does not render plaintiff the sole proximate cause of his injuries  … . The evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to “use available, safe and appropriate equipment” … . Defendants failed to demonstrate that plaintiff ” chose for no good reason not to’ ” wear a safety harness … . At most, plaintiff’s “alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute” … . Schutt v Bookhagen, 2020 NY Slip Op 04651, Fourth Dept 8-20-20