PLAINTIFF’S ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS FALL FROM A MAKESHIFT PLATFORM ON A LULL (FORKLIFT) USED TO REACH ELEVATED AREAS; PLAINTIFF’S MOTION FOR A DIRECTED VERDICT ON HIS LABOR LAW 240(1) CAUSE OF ACTION AGAINST THE HOMEOWNER WHO LEASED THE LULL AND DIRECTED PLAINTIFF’S WORK SHOULD HAVE BEEN GRANTED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a directed verdict on his Labor law 241(6) cause of action should have been granted. Plaintiff fell from a makeshift platform he placed on a lull (forklift) to reach elevated areas of a house he was wrapping with an insulation material (Tyvek). The central question was whether plaintiff’s own actions were the sole proximate cause of his fall and injuries:

… [I]t is beyond dispute that the lull was not an adequate safety device for the elevated work being performed by plaintiff at the time of his fall … . This conclusion is not changed by defendant’s provision of harnesses incompatible with the lull … . Plaintiff’s accident was plainly the direct result of the makeshift lull setup failing, and the parties are therefore in agreement that, unless plaintiff’s choice not to use other available safety devices when installing the Tyvek was the sole proximate cause of his own injuries, plaintiff has established his Labor Law § 240 (1) claim.

Plaintiff indeed brought extension ladders and scaffolding with him to the job site, and it appears that defendant provided some ladders as well. …[T]here is simply no trial evidence to suggest that plaintiff knew he was expected to use a ladder or scaffolding to wrap the front of the house with Tyvek. It is uncontroverted that use of the lull with a makeshift platform had become commonplace at the job site in the weeks preceding plaintiff’s accident, that the scaffolding was set up at the rear of the house specifically because the lull could not traverse the terrain there and that defendant’s only affirmative safety-related instructions to plaintiff regarding the subject elevated work were to either use a harness or construct a platform, both of which involved use of the lull. As proof of the foregoing element is lacking, there is no rational process by which a jury could conclude that plaintiff was the sole proximate cause of his own injuries … . DeGraff v Colontonio, 2022 NY Slip Op 01074, Third Dept 2-17-22