Wade Clark Mulcahy LLP

<p style="text-align: justify;">I have fallen [through a hole] and can’t get up! Now what? When a plaintiff brings a Labor Law §240(1) claim for injuries sustained from falling through an unprotected opening, he or she must prove that they were exposed to an elevated related risk during construction and must present evidence as to which specific and identifiable safety device would have prevented the fall.</p>
<p style="text-align: justify;">Labor Law §240(1) imposes a nondelegable duty on owners and general contractors to provide safety devices to protect workers from elevation related risks. These owners and contractors, and their agents, are responsible regardless of whether they supervise or control the work. A plaintiff’s own negligence will not provide a defense to a Labor Law §240(1) claim unless the plaintiff’s actions were the sole proximate cause of the accident.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/09/Cazho-v.-Urban-Bldrs.-Group-Inc.-1.pdf">Cazho v. Urban Bldrs. Group, Inc.,</a></em> 2020 NY Slip Op 51039(U) (Bronx Cnty. September 11, 2020), the Supreme Court recently addressed these issues in a case where a construction worker was injured after falling through a hole in a roof intended to be the skylight. Plaintiff moved for summary judgment as to the defendant’s liability under Labor Law §240(1). The defendant argued, among other things, that the law should not apply because plaintiff caused the hole covering to be moved and failed to identify a specific safety device that could have prevented his fall per the rule established in <em>Ortiz v. Varsity Holdings LLC</em>, 18 N.Y.3d 335 (2011).</p>
<p style="text-align: justify;">In granting plaintiff’s motion, the court held that the plaintiff met his burden of identifying a specific safety device under <em>Ortiz</em>, by showing that he was provided with a safety harness that was inadequate because there was no location where the harness could be secured. Plaintiff also pointed to evidence establishing that no other safety devices were used. The court held that although plaintiff’s unawareness of the hole may constitute comparative negligence, his recovery was not barred because the comparative negligence was not the sole proximate cause of the accident. In holding that plaintiff proved his Labor Law §240(1) claim, the court stressed that plaintiff was assigned to work on the roof, the skylight needed to be removed to complete the work, and plaintiff was not given instruction regarding the opening.</p>
<p style="text-align: justify;">Thus, a plaintiff asserting a Labor Law §240(1) claim can meet the burden of proof by showing that he or she was not provided with a safety device or that the safety device provided was inadequate under the circumstances.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please e-mail <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>