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IF PLAINTIFF, A FOREMAN, HAD THE AUTHORITY TO STOP WORK BECAUSE OF RAIN, THEN HIS CONTINUING TO WORK MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; IF PLAINTIFF HAD BEEN INSTRUCTED TO WORK IN THE RAIN, THEN THE WET PLYWOOD MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; BECAUSE OF THE CONFLICTING OR ABSENCE OF EVIDENCE ON THESE ISSUES, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; TWO JUSTICE DISSENT (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy in this Labor Law 241 (6) action, over a two-justice dissenting opinion, determined conflicting testimony about whether plaintiff, who was a foreman, had the authority to stop work because of rain, or was instructed to work in the rain, raised a question of fact about the cause of the accident. Plaintiff slipped on wet plywood and fell as he was passing steel rebar to workers below:

The deposition testimony raised issues of fact as to whether plaintiff’s injuries were proximately caused by a slippery condition in violation of Industrial Code (12 NYCRR) § 23-1.7(d), or whether the sole proximate cause was plaintiff’s decision, as a foreman, to work on a plywood surface exposed to the elements while it was raining … . * * *

… [T]he evidence is inconclusive as to whether plaintiff’s decision to work in the rain, rather than simply following his general foreman’s instructions about what work to perform, was the sole proximate cause of his slip-and-fall accident. … [T]his case is distinguishable from the line of cases relied upon by the dissent that conclude that a plaintiff is not the proximate cause of an accident when there is undisputed evidence that they were following the instructions of a foreman. Here, plaintiff was also a foreman with specific duties and potential control over the work that he and his crew were performing. Whether he could or should have ceased work based on his own authority, as a foreman, his extensive work experience and conditions of the site, there are issues of fact that cannot be resolved on this record. Sutherland v Tutor Perini Bldg. Corp., 2022 NY Slip Op 04228, First Dept 6-30-22

Practice Point: Here the plaintiff was a foreman on a construction site. He was working in the rain when he slipped and fell on wet plywood. If plaintiff had the authority to stop work because of the rain, he may be deemed the sole proximate cause of his fall. If plaintiff was ordered to work in the rain, then the slippery plywood may be deemed to be the sole proximate cause of his fall. Because there was conflicting and/or a lack of evidence on these issues, plaintiff’s motion for summary judgment should not have been granted.

 

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