Third Department

TOPICS:Labor Law § 240(1), Sole proximate cause

SMITH V. STATE OF NEW YORK 180 A.D.3d 1270 February 27, 2020

The claimant’s decedent worked as a bridge painter on a state-owned bridge over a canal. While the decedent was working from a suspended platform, several of the platform’s cables snapped, the platform collapsed, and the decedent fell into the canal and drowned. The defendant argued that the claimant’s Labor Law § 240(1) claim should be dismissed because the sole proximate cause of decedent’s injury was the failure to use available safety devices, including wearing a life jacket or attaching his harness and lanyard to an anchorage point. The court rejected this argument and granted summary judgment to the claimant, holding that the decedents could not be the sole proximate cause of the accident when the precipitating event was the failure of the platform itself.

PRACTICE NOTE: When the primary safety device fails, failure to use additional safety devices amounts to, at most, comparative negligence, which does not preclude liability under § 240(1).

TOPICS:Labor Law § 240(1), Sole proximate cause, Enumerated activity

MARKOU V. SANO-RUBIN CONSTR. CO., INC. 182 A.D.3d 674 April 2, 2020

The plaintiff was performing electrical work on a ladder, which he fell from. The plaintiff moved for summary judgment on his Labor Law § 240(1) claim. According to testimony, the plaintiff was hired to troubleshoot and repair a nonfunctioning overhead lighting system. After determining which light fixture and junction box was faulty, the plaintiff climbed the ladder, which abruptly slid and caused the plaintiff to jump off to avoid hitting his head as the ladder fell. The defendant/owner submitted expert testimony, which asserted that the plaintiff was not performing activity protected by the Labor Law statute, but was only doing routine maintenance by changing light bulbs. The court found that the expert’s affidavit was factually unsupported, failed to address the repair work that the plaintiff was performing, and was speculative and inaccurate. Moreover, a worker engaged in a protected activity sets forth a prima facie entitlement to summary judgment “where the ladder collapses, slips or otherwise fails to perform its function of supporting the worker and his [or her] materials.” The defendant presented no evidence that the ladder was adequate or properly placed or that the plaintiff’s actions were the sole proximate cause of his accident. The court held that the ladder did not provide adequate protection to the plaintiff, and that this violation of the statute caused the plaintiff to fall and sustain injuries. Therefore, the plaintiff’s own actions could not be the sole proximate cause of the fall.

PRACTICE NOTE: When a safety device fails to adequately protect a worker from injury, the worker’s own actions cannot be the sole proximate cause of the incident.

TOPICS:Labor Law § 200, Labor Law § 241(6), Storm in progress

STEWART V. ALCOA, INC. 184 A.D.3d 1057 June 25, 2020

The plaintiff was injured when he slipped on snow and ice while working inside a building that was partially open to the elements. The plaintiff asserted claims under Labor Law §§ 200 and 241(6), as well as common law negligence, and the defendants moved for summary judgment. The defendants first argued that the storm in progress defense precluded the § 200 and common law negligence claims. The plaintiff admitted that it was snowing heavily on the day he fell, but asserted that he fell on old ice that had been present for several days. The defendants conceded that snow had fallen earlier in the week, and did not submit clear evidence that snow and ice had been cleared after that earlier storm, or that the plaintiff had fallen on new snow rather than old ice. Thus, the court held that the plaintiff’s claims that he fell on old ice precluding summary judgment on the claims pursuant to § 200 and common law negligence. The defendants next contended that the plaintiff’s claims should have been dismissed because the plaintiff was injured by the same condition that he had been directed to remove. In particular, the plaintiff’s § 241(6) was premised upon an alleged violation of 12 NYCRR § 23-1.7(d), which states in relevant part that “[e]mployers shall not suffer or permit any employee to use a floor, passageway [or] walkway . . . which is in a slippery condition.” However, recovery under that Industrial Code provision is precluded when the injury is caused by the specific work being performed or the condition the plaintiff was charged with removing. Similarly, recovery under § 200 is precluded when the plaintiff is engaged in remedying the defect that caused the injury. The plaintiff testified that he was assigned to brush snow off steel beams, and that after he nearly slipped on ice he decided the area needed to be salted. The defendants’ submitted evidence that the plaintiff’s crew was assigned to use ice melt on slippery areas, but not all members of the crew had that job. The defendants could not conclusively show that the plaintiff was actually engaged in removing the ice that caused his injury when he fell, only that he was reporting it. Thus, the defendants’ motion was properly denied on that basis.

PRACTICE NOTE: Evidence that a snowstorm was in progress shifts the burden to the plaintiff to produce evidence that raises an issue of fact as to whether dangerous snow and/or ice that contributed to the accident existed prior to that storm.