PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he needed to stand on the rim of a bathtub to install a shower-curtain rod. He hit his head and fell when attempting to step up on the rim of the tub. The defendants argued the installation could have been done from floor level. There was no room in the bathroom for an A-frame ladder:

The motion court properly granted plaintiff’s motion for partial summary judgment on his section 240(1) claim. Plaintiff established prima facie that he was entitled to judgment by evidence that he suffered harm that “flow[ed] directly from the application of the force of gravity” when he fell from the edge of the bathtub, which served as the functional equivalent of a scaffold or ladder … . The evidence showed that there was insufficient room inside the bathroom for plaintiff to use an A-frame ladder and that plaintiff instead was forced to reach the elevated work area by standing on the edge of the bathtub in order to install the shower-curtain rods. Plaintiff testified that standing on the edge of the tub was necessary because he otherwise would lack the necessary leverage to tighten the screws with an Allen wrench.

In opposition, [defendants] failed to raise an issue of fact. They rely on an affidavit by their biomechanical expert, Mr. Bove, who opined that plaintiff’s overhead reach was sufficient to perform the task while standing on the ground or inside the bathtub. Bove’s initial affidavit, however, ignored plaintiff’s testimony that he needed the height in order to have leverage so that he would have enough strength to tighten the screws with the Allen wrench. Vitucci v Durst Pyramid LLC, 2022 NY Slip Op 02968, First Dept 5-3-22

Practice Point: Here plaintiff fell attempting to stand on the edge of a bathtub to install a shower-curtain rod. The majority concluded the edge of the bathtub was the equivalent of a scaffold and plaintiff’s fall was covered under Labor Law 240(1). Two dissenters argued the job could have been performed from ground level.