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. Plaintiff was standing on a scaffold installing an exit sign when he touched a live wire and fell. Failure to turn off the electricity was at most comparative negligence which does not defeat the action:
The undisputed evidence in the record shows that plaintiff was attempting to install an exit sign in a building under construction while standing about 12 feet above the floor on a scaffold platform, without using any safety harness or safety lines, when he touched a live wire to a component of the sign, causing him to receive an electrical shock and then fall off the scaffold and onto the floor. Plaintiff made a prima facie showing that his accident was proximately caused by the inadequacy of the safety devices he was using or the absence of other safety devices necessary to protect him from the risks posed by working at a significant elevation above the floor … .
Defendants did not raise issues of fact by pointing to evidence that plaintiff checked the scaffold before using it and did not find it to be defective, and that the scaffold had safety railings on all four sides, or by asserting that no other devices such as a safety harness or safety line would have prevented his fall … .
Defendants failed to raise an issue of fact as to whether “plaintiff knew that he was supposed to use a harness” or safety line, “or that he disregarded specific instructions to do so” … . …
Plaintiff’s failure to turn off the power supply before working with a live wire was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Goundan v Pav-Lak Contr. Inc., 2020 NY Slip Op 06950, First Dept 11-24-20