QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF WAS INSTRUCTED TO WORK ONLY ON GROUND LEVEL AND NOT TO USE STILTS, AND WHETHER THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PLAINTIFF’S CONTINUED USE OF THE STILTS AFTER HE FELT THEM BECOME UNSTABLE, PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which precluded summary judgment on plaintiff’s Labor Law 240 (1) cause of action. Apparently, plaintiff fell while using stilts. There was a question of fact whether plaintiff’s boss told him to work only on ground level without stilts. And there was a question of fact whether plaintiff was the sole proximate cause of his accident because he kept using the stilts when they became unstable and did not request another pair:

… [G]iven the nature of the work plaintiff was performing at the time of his accident, the distance he fell presented a physically significant elevation within the meaning of Labor Law § 240(1) … . While the distance may have been physically significant within the meaning of Labor Law § 240(1), evidence that plaintiff’s boss … specifically instructed him to only work on ground level and not to use stilts “raises triable issues of fact as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1) … .

Issues of fact also exist as to whether plaintiff was the sole proximate cause of the accident because when he felt the stilts become unstable his “normal and logical response” should have been to request another pair rather than to keep working on them … . …

While it is disputed whether plaintiff was using his own stilts or his employer provided them, and it is further unclear whether the stilts failed because a screw came out while they were in use or because they had been jerry-rigged with a wire threaded through a bolt hole, any use of defective stilts or failure to properly inspect them to discern any such defect was not the sole proximate cause of the accident where, as here, no proper safety devices were provided … . Gonzalez v DOLP 205 Props. II, LLC, 2022 NY Slip Op 03868, First Dept 6-14-22

Practice Point: Here, where plaintiff fell using stilts, evidence plaintiff was instructed to work only on ground level precluded summary judgment on the Labor Law 240 (1) cause of action. Plaintiff’s continued use of the stilts after he felt them become unstable raised a question of fact whether plaintiff was the sole proximate cause of the injury.