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INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff was injured when a heavy objected being lifted from a horizontal to a vertical position shifted momentarily. The Fourth Department found that the activity during which plaintiff was injured did not involve a risk covered by Labor Law 240 (1):

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“Liability may . . . be imposed under [Labor Law § 240 (1)] only where the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . “Consequently, the protections of [the statute] do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” … . Rather, the statute “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” … .

Here, the harm to plaintiff was not “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … ; rather, the submissions establish that plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker’s side … . Although plaintiff’s back injury “was tangentially related to the effects of gravity upon the [switchgear segment that] he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that defendants established as a matter of law that plaintiff’s injuries resulted from a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist., 2017 NY Slip Op 07806, Fourth Dept 11-9-17

 

LABOR LAW-CONSTRUCTION LAW (INJURY WHILE LIFTING A HEAVY OBJECT FROM A HORIZONTAL TO A VERTICAL POSITION NOT ENCOMPASSED BY LABOR LAW 240 (1) (FOURTH DEPT)

PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this Labor law 241 (6), 200 and common law negligence action should have been granted. Plaintiff was struck by a car while working in the median of a highway. Defendant, Oakgrove, was a prime contractor with whom the injured plaintiff’s employer did not contract. And Oakgrove had no supervisory control over the plaintiff or the worksite:

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“The owner or general contractor is not synonymous with the prime contractor . . . Generally speaking, the prime contractor for general construction (especially in State construction projects) has no authority over the other prime contractors . . . unless the prime contractor is delegated work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work” … .

Here, Oakgrove and Foit-Albert were both prime contractors, and plaintiff’s employer contracted only with Foit-Albert. Oakgrove did not supervise or instruct plaintiff. Rather, plaintiff reported to a supervisor at Foit-Albert. Oakgrove established as a matter of law that it had no control over plaintiff or the work he was performing, and plaintiff failed to raise a triable issue of fact … . …

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… Oakgrove … established that it did not have control over the work site at the time of plaintiff’s accident …. Thus, the court should have dismissed the Labor Law § 200 claim and common-law negligence cause of action … . Knab v Robertson, 2017 NY Slip Op 07822, Fourth Department 11-9-17

 

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/PRIME CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW, PRIME CONTRACTOR DID NOT CONTRACT WITH PLAINTIFF’S EMPLOYER, DID NOT SUPERVISE PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORKSITE, ITS MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241 (6) 200 AND COMMON LAW NEGLIGENCE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

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BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s (Duran’s) motion pursuant to CPLR 4404 (a) to set aside the verdict in the interest of justice and for a new trial on the cause of action alleging a violation of Labor Law § 240(1) should have been granted. Plaintiff alleged he fell from a beam which was four feet above the ground. There was evidence plaintiff previously alleged in a document that he fell over debris, but there was a question whether plaintiff, who spoke Spanish, understood the statement in the document. Plaintiff’s counsel asked that the jury be instructed to decide whether plaintiff fell off the beam, but the trial judge refused that request:

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… Supreme Court erred in denying the plaintiffs’ request to ask the jury to determine not only whether the temple violated Labor Law § 240(1), but also to determine whether Duran fell off the beam … . Under the particular circumstances of this case, this constituted a fundamental error warranting a new trial because the court’s instructions failed to explain to the jury that, in light of arguably inconsistent accounts of how the accident occurred, the jury was entitled to find that Duran did not fall from the beam or, alternatively, that he did fall from the beam but no safety device was required under Labor Law § 240(1). Further, there was sufficient evidence of juror confusion with respect to this issue … . Notably, the jury requested a readback of Labor Law § 240(1). The court’s errors in failing to properly charge the jury and add the interrogatory requested by the plaintiffs prejudiced a substantial right and warrants a new trial … . Duran v Temple Beth Sholom, Inc., 2017 NY Slip Op 07708, Second Dept 11-8-17

 

LABOR LAW-CONSTRUCTION LAW (BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (a) (LABOR LAW-CONSTRUCTION LAW, BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined defendants’ motions for summary judgment on the Labor Law 200 and 240 (1) causes of action were properly granted. The plaintiff was injured when attempting to move a 500-600 pound piece of granite. A co-worker lost his grip and the granite fell 18 or 20 inches onto plaintiff’s toe. Because the defendants did not exercise any supervisory control over the manner of plaintiff’s work, the Labor Law 200 cause of action was dismissed. Monitoring safety conditions does not amount to supervisory control. Because the action did not involve the failure or absence of a safety device, the Labor Law 240 (1) cause of action was dismissed:

“Where . . . a claim arises out of the means and methods of the work, a [defendant] may be held liable for . . . a violation of Labor Law § 200 only if [it] had the authority to supervise or control the performance of the work” … . General supervisory authority for the purpose of overseeing the progress of the work is insufficient to impose liability under the statute … . Here, the defendants established, prima facie, that the plaintiff’s injuries arose solely out of the manner of his employer’s work and the defendants exercised no supervisory control over that work … . The defendants’ authority to monitor safety conditions at the work site is merely indicative of their “general supervision and coordination of the work site and is insufficient to trigger liability” … ,

The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against them. In cases involving falling objects, section 240(1) applies only when “the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . Here, the defendants established, prima facie, that the granite stone did not fall because of the absence or inadequacy of a safety device … . Portalatin v Tully Constr. Co.- E.E. Cruz & Co., 2017 NY Slip Op 07762, Second Dept 11-8-17

 

LABOR LAW-CONSTRUCTION LAW (NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED (SECOND DEPT))

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted in this Labor Law 240(1), 241(6) and 200 action. Plaintiff alleged he was directed to work without a scaffold. He rigged up a ladder with planks on it placed horizontally over a fire escape as a makeshift scaffold. The ladder tipped when a heavy object was placed on it and plaintiff fell:

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Under Labor Law § 240(1), owners and general contractors, and their agents, have a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites … . “In order to prevail on a claim under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his or her injuries” … . No recovery is available under Labor Law § 240(1) when the plaintiff’s actions were the sole proximate cause of the accident … .

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Here, the evidence submitted on the defendants’ motion for summary judgment failed to establish, prima facie, that no [Labor Law 240(1)] violation occurred, or that the alleged violation was not a proximate cause of the accident … . …

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Labor Law § 200 codifies the common-law duty of an owner or contractor to provide workers with a reasonably safe place to work … . * * *

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Here, the cause of action arose out of alleged defects or dangers in the methods or materials of the work. The defendants failed, prima facie, to eliminate triable issues of fact as to whether [defendant] had the authority to supervise or control the injured plaintiff’s work, and as to causation … .

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor … .  Here, the plaintiffs alleged, inter alia, a violation of Industrial Code (12 NYCRR) § 23-1.16, which requires, in relevant part, that safety belts and harnesses be properly attached to a tail line or lifeline so that “if the user should fall such fall shall not exceed five feet” … . King v Villette, 2017 NY Slip Op 07596, Second Dept 11-1-17

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).

The First Department determined plaintiff was properly granted summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged he was not provided with a ladder and was instructed to climb up the side of a bridge, from which he fell. The defendants’ claim that plaintiff was at fault because of his size is of no consequence because comparative fault is not a defense:

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Plaintiff made a prima facie showing that Labor Law § 240(1) was violated, and that the violation was a proximate cause of his injury … . He testified that onsite supervisors gave him a work assignment requiring him to work from the top of a sidewalk bridge, thereby exposing him to elevation-related risks covered under Labor Law § 240(1). He further stated that he was not provided with a ladder or any other safety device; was instructed to access the top of the bridge by climbing up its side; and that, while attempting to do so, he lost his grip, slipped, and fell to the ground. * * *

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Defendants’ recalcitrant worker defense fails, since there is no indication that they instructed plaintiff to use a ladder or informed him that a ladder or other safety device was located at the sidewalk bridge … .

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Defendants’ contention that plaintiff fell from the sidewalk bridge as a result of his “carelessness” and “bad decisions,” and because of his size, is unavailing. Any comparative negligence by plaintiff is not a defense to his Labor Law § 240(1) claim … . Cardona v New York City Hous. Auth., 2017 NY Slip Op 06620, First Dept 9-26-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT))

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MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined the corporate veil was properly pierced, a defense expert’s testimony was properly excluded, and millions in damages for pre-impact terror, conscious pain and suffering, as well as punitive damages, were warranted. However, the court deemed the damages awarded by the jury excessive. The defendants were responsible for ordering a new part for a construction crane defendants provided at a construction site. There was evidence the manufacturer of the part was known to be incompetent but was chosen by the defendants anyway to cut costs. The defendants were aware of serious flaws in a similar part made by the same manufacturer. There was evidence the required testing procedures for the new part were deliberately circumvented by the defendants. The evidence supported the jury’s conclusion that the new part failed causing the crane to fall 200 feet, fatally injuring the plaintiffs, the crane operator (Leo) and a co-worker (Kurtaj) on the ground:

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… [O]ne individual (Lomma) exercised domination and control over three separate corporations which he treated as one entity.

There was … sufficient evidence to permit the jury to assess personal liability against Lomma. Contrary to Lomma’s arguments, plaintiffs presented substantial evidence of Lomma’s personal participation in the corporate defendants’ affirmatively tortious acts launching the dangerous instrumentality that caused the deaths of plaintiffs’ decedents … . …

The trial court properly precluded the proposed testimony of defense expert James Wiethorn, which not only was not based on facts in the record, but also contradicted facts in the record … . * * *

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Preimpact terror is a sub-category of conscious pain and suffering … . * * *

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While Lomma and his companies, which dominated the crane rental market in New York, may not have intended to cause plaintiffs’ deaths, these deaths nevertheless arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course. * * *

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“[I]t is the duty of the court to keep a verdict for punitive damages within reasonable bounds considering the purpose to be achieved as well as the mala fides of the defendant in the particular case”… . Moreover, “[a]lthough states possess considerable discretion over the imposition of punitive damages, the United States Supreme Court has emphasized that there are constitutional limitations on such awards, and that the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments upon a tortfeasor” … . Matter of 91st St. Crane Collapse Litig., 2017 NY Slip Op 06419, First Dept 9-12-17

NEGLIGENCE (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/CORPORATION LAW (PIERCE CORPORATE VEIL, MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/PIERCE CORPORATE VEIL (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))CRANES (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW  (MULTI-MILLION DOLLAR VERDICTS AGAINST THE OWNER PERSONALLY AND HIS COMPANIES WARRANTED, WORKER SAFETY DISREGARDED WHEN REPAIR TO CONSTRUCTION CRANE UNDERTAKEN, CRANE OPERATOR AND CO-WORKER ON THE GROUND KILLED WHEN CRANE FELL (FIRST DEPT))

IN THIS LABOR LAW 240 (1) ACTION, PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP).

The Court of Appeals, reversing the appellate division, determined there was a question of fact whether plaintiff’s own conduct was the sole proximate cause of his injuries. Plaintiff had constructed a ramp out of greasy planks to move from the roof to a scaffold. Plaintiff slipped and fell from the ramp:

We agree with the Appellate Division that the fall of … plaintiff was the result of an elevation-related risk for which Labor Law § 240 (1) provides protection. We further conclude, however, that there is a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of the accident” … . Viewing the facts in the light most favorable to defendants, as we must … , we conclude that plaintiff’s foreman arguably provided conflicting accounts of whether plaintiff had “adequate safety devices available,” whether “he knew both that they were available and that he was expected to use them,” whether “he chose for no good reason not to do so,” and whether “had he not made that choice he would not have been injured” … . Valente v Lend Lease (US) Constr. LMB, Inc., 2017 NY Slip Op 06400, CtApp 9-5-17

LABOR LAW-CONSTRUCTION LAW (IN THIS LABOR LAW 240 (1) ACTION PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, IN THIS LABOR LAW 240 (1) ACTION PLAINTIFF SLIPPED AND FELL FROM A GREASY RAMP HE CONSTRUCTED FROM PLANKS, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES (CT APP))

QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT).

The Second Department determined there was a question of fact whether plaintiff’s actions constituted the sole proximate cause of his injuries in this Labor Law 240(1) action. Plaintiff fell after he had stacked two Baker scaffolds and a closed a-frame ladder on top of one another to install sheetrock:

… [T]he defendant raised a triable issue of fact as to whether pipe scaffolds, which were available to the plaintiff, constituted adequate protection for the work that the plaintiff was performing and, if so, whether the plaintiff, based on his training, prior practice, and common sense, knew or should have known to use pipe scaffolds instead of Baker scaffolds … . The defendant also raised a triable issue of fact as to whether the scaffolds alone were adequate for the job, thereby negating any need for the plaintiff to place a closed ladder on top of the scaffolds … . Therefore, the defendant submitted evidence that would permit a jury to find that “the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured” … . Nalvarte v Long Is. Univ., 2017 NY Slip Op 06183, Second Dept 8-16-17

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LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT))/SOLE PROXIMATE CASE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS INJURIES IN THIS LABOR LAW 240(1) ACTION (SECOND DEPT))

PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined defendants were entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action. Plaintiff was constructing a scaffold floor by laying planks. He fell when he stepped on an unsecured plank he had just put down, instead of an available secured plank. Therefore plaintiff’s action was the sole proximate cause of his fall:

To succeed on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident … . Where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)… . Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action by demonstrating that the plaintiff was the sole proximate cause of the accident that caused his alleged injuries, since he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam, rather than standing upon the secured planking available to him, which he had used in the minutes leading up to the accident. Melendez v 778 Park Ave. Bldg. Corp., 2017 NY Slip Op 06175, Second Dept 8-16-17

LABOR LAW-CONSTRUCTION LAW (SOLE PROXIMATE CAUSE, PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT))

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