You are here: / / IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF...

IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF FOR INTERIOR PAINTING WOULD ACCUMULATE AND CAUSE DIZZINESS RESULTING IN PLAINTIFF’S FALL FROM THE LIFT; PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff was spray painting the interior of a factory using a boom lift when he became dizzy and fell from the lift. Plaintiff diesel fumes from the lift accumulated above him, causing the dizziness:

… [I]t is undisputed that plaintiff fell from the lift while it was raised six to eight feet in the air. In support of his motion, plaintiff submitted evidence establishing that his injuries were causally related to the fall from the lift and that plaintiff was using a boom lift that discharged fumes into the factory. Plaintiff also submitted the affidavit of an expert who opined that defendants violated Labor Law § 240 (1) by failing to ensure that the boom lift was ” ‘so constructed, placed and operated as to give proper protection’ ” to plaintiff and by allowing plaintiff to place the boom lift in a position where diesel fumes were likely to accumulate above him and cause dizziness. We conclude that plaintiff thus met his prima facie burden on his motion by establishing that his fall was a “normal and foreseeable” consequence of the placement of the lift, which exhausted noxious fumes too close to plaintiff … .

In response, defendants failed to raise a triable issue of fact whether the hazard of fumes is “of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability” … . Defendants also failed to raise an issue of fact whether plaintiff deliberately unclipped his safety harness, and we note that the issue presents, at best, a question of comparative negligence, which is not a defense to liability under Labor Law § 240 (1) … . Wolfanger v Once Again Nut Butter Collective Inc., 2024 NY Slip Op 01452, Fourh Dept 3-15-24

Practice Point: Plaintiff was using a boom lift for interior painting and alleged that diesel fumes from the lift made him dizzy, causing him to fall. That scenario was not so attenuated from the statutory violation as to constitute a superseding cause of plaintiff’s injury. Plaintiff’s Labor Law 240(1) cause of action should not have been dismissed.

 

You might also like
IN THIS CHILD PORNOGRAPHY CASE, COMPELLING DEFENDANT TO UNLOCK THE CELL PHONE WITH HIS FINGERPRINT AMOUNTED TO TESTIMONIAL EVIDENCE THAT HE OWNED, CONTROLLED AND HAD ACCESS TO THE CONTENTS OF THE PHONE, A VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION; THE MOTION TO SUPPRESS THE TESTIMONIAL EVIDENCE AND THE CONTENTS OF THE PHONE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
Plaintiff Need Not Exclude Every Other Possible Cause of an Accident to Demonstrate Proximate Cause
THE DOCTRINE OF LACHES DID NOT APPLY TO DEFENDANT’S MOTION TO AMEND THE DRO TO SPECIFY PLAINTIFF WAS NOT ENTITLED TO A SHARE OF DEFENDANT’S DISABILITY RETIREMENT BENEFITS; THE TWO-JUSTICE DISSENT WOULD HAVE APPLIED THE LACHES DOCTRINE (FOURTH DEPT).
Commercial Property Overvalued—Evidentiary Criteria Explained In Some Depth
THE SIX-MONTH PERIOD FOR REFILING A COMPLAINT AFTER DISMISSAL (CPLR 205(A)) BEGAN TO RUN ONLY WHEN THE APPEAL OF THE DENIAL OF THE MOTION TO VACATE THE DISMISSAL WAS EXHAUSTED (FOURTH DEPT).
SUPREME COURT SHOULD NOT HAVE HELD AS A MATTER OF LAW THAT THE TRIGGERING EVENT FOR INSURANCE COVERAGE FOR ASBESTOS-INJURY IS THE FIRST EXPOSURE TO ASBESTOS AS OPPOSED TO EXPOSURE TO A CERTAIN LEVEL OF ASBESTOS (FOURTH DEPT).
DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).
ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE SUPPRESSION COURT APPLIED THE WRONG “DEBOUR” LEVEL TO THE INITIAL... PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND...