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PLAINTIFF WAS IN A TRENCH AND WAS STRUCK BY CONCRETE WHICH SLID INTO THE TRENCH; THE MAJORITY CONCLUDED CONFLICTING ACCOUNTS OF THE ACCIDENT AND PLAINTIFF’S FAILURE TO USE AVAILABLE LUMBER TO BRACE THE SIDES OF THE TRENCH RAISED QUESTIONS OF FACT; THE DISSENT ARGUED THAT NO MATTER HOW THE ACCIDENT HAPPENED LABOR LAW 240(1) LIABILITY WAS DEMONSTRATED (FALLING OBJECT; ABSENT SAFETY DEVICE) (FIRST DEPT).

The First Department, reversing Supreme Court, over a comprehensive dissent, determined questions of fact precluded summary judgment on plaintiff’s Labor Law 240(1) cause of action. Apparently plaintiff was in a trench when he was struck by a piece of cement. Plaintiff alleged the concrete slid off a backhoe. An eyewitness stated the concrete was dislodged during excavation. The majority concluded there was also a question of fact about whether plaintiff was the sole proximate cause of the accident because lumber to brace the sides of the trench were available and plaintiff was instructed to use it. The dissenter argued that, no matter how the accident happened, plaintiff was injured by a falling object for which Labor Law 240(1) liability attached:

The conflicting accounts raise a credibility determination which is the province of the factfinder … . …

… [T]here are also issues of fact as to whether plaintiff was the sole proximate cause of the accident because he knew or should have known to use an available safety device — namely, lumber braces to brace the sides of the trench … .

From the dissent:

The conflicting accounts of the accident from plaintiff and defendant do not present a triable issue of fact because both versions include a violation of Labor Law § 240(1) as a proximate cause of plaintiff’s injuries … . Plaintiff’s account, for its part, is a basic statutory violation resulting from failure to properly secure a hoisted object … .

Likewise, [the eyewitness’] version involves a statutory violation as a proximate cause. … Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by absent or improper bracing … . Veliu v Verizon N.Y. Inc., 2026 NY Slip Op 05374, First Dept 9-22-26

 

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