Wade Clark Mulcahy LLP

In Fuentes v. 257 Toppings Path, Plaintiff Gregorio Fuentes was employed as a laborer to work on the new construction of a house on land owned by the defendant third-party plaintiff. During the course of construction, the plaintiff was spray-painting insulation in the attic space when he fell 16 feet through an opening in the attic floor. The opening was intended to be covered by a panel that would provide access to the attic upon completion of construction. Plaintiff alleged violations of Labor Law 240(1) and 241 (6).  As we know, Labor Law 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards.

In this matter, plaintiffs’ evidence established that the plaintiff was exposed to an elevation risk within the ambit of Labor Law 240(1) by virtue of the uncovered, unguarded opening in the attic floor, that he was not provided safety devices to protect him from that hazard, and that the failure to provide him proper protection from the uncovered, unguarded opening was a proximate cause of his injuries. The court granted plaintiffs’ summary judgment motion despite the fact that plaintiff testified that his visibility was poor due to the condition of a protective mask that he was wearing at the time of the accident. The court noted that any potential comparative negligence arising from this fact would not be a defense to the Labor Law 240(1) cause of action. Any comparative negligence on the part of the injured plaintiff does not preclude liability founded upon a violation of Labor Law 240(6).

This decision is helpful and gives insight into our potential evaluations of cases where plaintiffs might be comparatively negligent. Despite plaintiff having his vision obstructed and then falling into the open space, it did not preclude the Labor Law violations. The fact that there is a violation of the labor law is enough and no negligence on plaintiff’s part is enough to preclude such violations. This is significant because we come across many cases where plaintiffs are negligent in the way they are conducting their work, however, if there is a labor law violation, it likely will not be precluded due to plaintiffs negligence.