Plaintiff stone mason’s motion for summary judgment on liability under Labor Law §240(1)

Plaintiff stone mason’s motion for summary judgment on liability under Labor Law §240(1) was properly denied because of inconsistencies in his description of how the accident happened.  Plaintiff was the sole witness to his accident.  Plaintiff fell when he was attempting to descend via a scaffold from the roof of the building where he had been building a parapet wall.  Questions of fact existed both as to whether he was a recalcitrant worker and as to whether plaintiff’s acts were the sole proximate cause of the accident.

Regarding “recalcitrant witness”, plaintiff testified that although he had his own harness, there were no safety ropes at the site to attach to the harness or to the scaffold and that he would have been fired if he had delayed the job until safety ropes were obtained.  Plaintiff’s foreman testified that

  • he (the foreman) had instructed all workers including plaintiff to wear safety equipment,
  • that he and plaintiff had worn attached harnesses while working together earlier that day,
  • that when he (the foreman) had left earlier in the day, he left plaintiff in charge of the work site and asked plaintiff to finish the job, and
  • he (the foreman) never told plaintiff that plaintiff was expected to work on the roof with a properly attached harness.

From the  concurring opinion, we learn that the foreman averred in his affidavit that on the day of the accident, when he and plaintiff stood on the pipe scaffold as they worked, they wore properly secured harnesses, and that photographs taken soon after the accident showed safety ropes were in fact present.

Held:  This conflicting testimony created a triable issue as to whether plaintiff recalcitrantly failed to use available equipment that he had been directed to use and that, if used, would have averted his injuries.

Regarding sole proximate cause (i.e, whether Labor Law §240(1) had been violated), there was a question of fact as to whether plaintiff fell because of movement of the scaffold or, alternatively, because plaintiff’s losing his footing was unaccompanied by any failure of the scaffold.  These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, were inconsistent with each other and created a question of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of §240(1).

A fall from a scaffold or ladder in and of itself does not result in an award of damages to an injured party.  Rather, §240(1) liability depends upon the injury having resulted from the failure to use or the inadequacy of a device within the purview of the statute.  There is no liability under section 240(1) when there is no violation and the worker’s actions are the sole proximate cause of the accident.

Albino v. 221-223 West 82 Owners Corp., 2016 NY Slip Opn 05953 (1st Dep’t Sept. 8, 2016)

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