Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/07/Gonzalez-v.-DOLP-205-Properties-II-LLC.pdf">Gonzalez v. DOLP 205 Properties II, LLC</a></em>, 206 A.D.3d 468 (2d Dep’t 2022), the plaintiff construction worker sustained injuries after falling from stilts he was standing on while performing work. Given his injuries stemmed from an elevation-related hazard, the plaintiff claimed the defendant property owner was liable under New York Labor Law § 240(1), and initially prevailed on his summary judgment motion.</p>
<p style="text-align: justify;">On appeal, the Appellate Division, First Department, reversed the Supreme Court’s grant of summary judgment to the plaintiff. In particular, the court pointed to evidence indicating that the plaintiff’s boss explicitly instructed the plaintiff to remain on ground level while performing assigned work. Despite this, the plaintiff claimed that his boss’s assistant instructed him to perform elevated work on the stilts. Thus, the court found the existence of a “triable issue[] of fact as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law §240(1).”</p>
<p style="text-align: justify;">The court also noted the significance of the exact chain of command which the plaintiff received directives from on the issue of liability. Since absolute liability under § 240(1) requires a finding that the injury was proximately caused by a failure to provide appropriate safety measures, evidence that the plaintiff proximately caused the accident could preclude liability on the defendant. Here, the court noted the existence of another issue of fact where the plaintiff allegedly asked a third on-site individual for a different pair of non-defective stilts, but it was unclear whether this individual was a superior or merely a co-worker.</p>
<p style="text-align: justify;">This case serves as a useful reminder to attorneys in § 240 cases of the importance of clarifying a plaintiff’s scope of employment and the precise individuals the plaintiff received directives from.</p>
<p style="text-align: justify;">Thanks to Andrew Henriquez for his contribution to this post.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.</p>