PLAINTIFF INJURED HIS BACK WHEN HE LIFTED A HEAVY PIECE OF LUMBER TO ALLOW THE BLADES OF A FORKLIFT TO MOVE UNDER THE LUMBER; THERE WERE QUESTIONS OF FACT WHETHER LABOR LAW 240 (1) WAS APPLICABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted (but did not explain why). Plaintiff injured his back when he lifted a heavy object to allow the blades of a forklift to be moved under it:

There are issues of fact as to “whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … .

It appears that plaintiff was placed in a position that required him to lift an extremely heavy piece of lumber without any safety devices such as those listed in Labor Law § 240(1) in order to get the assistance of a forklift. We note, in this regard, that any action on plaintiff’s part in lifting the beam goes to the issue of comparative negligence, which is not a defense to a Labor Law § 240(1) claim, because the statute imposes absolute liability once a violation is shown … . Moreover, plaintiff was under no duty to demand an alternate safety device on his own because “[t]o place that burden on employees would effectively eviscerate the protections that the legislature put in place” … . “Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work” … . Greene v Raynors Lane Prop. LLC, 2021 NY Slip Op 03114, First Dept 5-13-21