The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:
While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24
Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.