Comparative Negligence Not Available in Labor Law 240 (1) Action—Claimant Entitled to Partial Summary Judgment—Suspended Cable On Which Claimant Was Walking to Access Scaffolding Broke

The Third Department determined claimant was entitled to partial summary judgment on his Labor law 240 (1) action.  A cable suspended under a bridge (which held up scaffolding) broke when claimant was walking on the cable to get to the scaffolding. The defendant countered that the workers were instructed to use ladders, not the suspended cables, to access the scaffolding, and claimant should have attached his lanyard to a separate safety cable, not the cable he was walking on:

The purpose of the suspension cables at the work site was to support workers and materials at the elevated height where the work necessarily occurred.  The cable that broke failed to fulfill this fundamental function, and that failure resulted in claimant’s fall.  Claimant established a prima facie case for liability under Labor Law § 240 (1).  Defendant produced proof that, contrary to claimant’s assertion, a separate safety cable was available that he should have used instead of attaching his lanyard to the cable upon which he was walking.  By attaching his lanyard to the suspension cable, claimant protected against the risk of falling but not the possibility of the cable breaking. While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense … .

Similarly, the assertion that ladders were available and workers had been instructed to use them instead of walking across the suspension cables does not raise a triable issue under the circumstances of this claim.  This is not a case where claimant lost his balance and fell off the cable while using it instead of the safer way to access the scaffold via a ladder.  Here, the cable broke.  Hence, a device intended to support a worker at an elevated height failed, and that failure was a proximate cause of claimant’s injury.  “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant’s] injury) to occupy the same ground as a [claimant’s] sole proximate cause for the injury” … . Accordingly, claimant was entitled to partial summary judgment on his Labor Law § 240 (1) claim.  Portes v New York State Thruway Authority, 516749, 3rd Dept 12-5-13