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THE SCAFFOLD ON WHICH PLAINTIFF WAS STANDING WAS INSECURE, WHICH IS A VIOLATION OF LABOR LAW 240(1); WHETHER THERE WAS SAFETY EQUIPMENT WHICH WAS NOT USED, EVEN IF PLAINTIFF WAS INSTRUCTED TO USE IT, IS IRRELEVANT (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 have been granted. There were no witnesses to plaintiff’s scaffold-fall. Plaintiff testified the unsecured scaffold moved when he started using the chipping gun and the unsecured plywood on which he was standing caused him to lose his balance. The fact that there may have been scaffold railings available and the evidence plaintiff was instructed to use the railings did not defeat summary judgment because comparative negligence is not part of the analysis:

The purpose of Labor Law § 240 (1) “is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor. . . instead of on workers, who are scarcely in a position to protect themselves from accident” … . Thus, the statute imposes a nondelegable duty on owners and contractors to provide “devices which shall be so constructed, placed and operated as to give proper protection to” those individuals performing the work … . “Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury” … . Therefore, if a violation of Labor Law § 240 (1) is a proximate cause of an injury, the plaintiff cannot be solely to blame for it … . * * * [E]ven if there were evidence that adequate safety devices were readily available at the work site and that plaintiff knew he was expected to use them, it would not render plaintiff the sole cause of the accident, because the unsecured scaffold with unlevel, uneven, and unsecured floor planks initially caused him to lose his balance and fall …”. Quiroz v Memorial Hosp. for Cancer & Allied Diseases, 2022 NY Slip Op 01130, First Dept 2-22-22

 

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