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NY Appellate Division Holds "Readily Available" Safety Devices Is An Issue of Fact

August 25, 2009

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In <i>Cherry v. Time Warner, Inc., et al., </i>the plaintiff , a construction worker, fell 3 floors from a scaffold on which he was working at the Time Warner Center. He sought summary judgment on his Labor Law 240(1) claim, arguing that defendants failed to provide him with adequate safety guardrails for the scaffold and that their failure to do so resulted in his injuries. Defendants cross-moved for summary judgment on grounds that plaintiff's conduct was the sole proximate cause of his injuries, not the alleged violation of the Labor Law. The trial court denied both parties' motions holding that a triable issue of fact existed as to whether guardrails were in place on the scaffold from which plaintiff fell and whether they were made readily available on the job site.
Over a vigorous dissent, the First Department affirmed and examined two controlling Court of Appeals cases - <i>Montgomery v. Federal Express Corp.</i> and <i>Robinson v. East Medical Center</i> - where the workers' conduct was found to be the sole proximate cause of their injuries by failing to use their "normal and logical response" to procure "readily available" safety devices. The First Department reasoned that a worker's "normal and logical response" to search for the safety equipment is triggered only when the worker knows exactly where the equipment is located and it is common practice to obtain that equipment.
In the <i>Cherry</i> case, the parties made conflicting statements as to where the scaffolds with appropriate guardrails were located on the date of plaintiff's accident. Accordingly, an issue of fact existed which precluded summary judgment. The Appellate Division further noted that while the question had not been presented, it would be highly unlikely that a scaffold with proper guardrails located on a different floor would be considered "readily" or "easily" available to the worker.
Thank to Stephanie Chen for her contribution to this submission.
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