In a recent decision, the Appellate Division, Second Department upheld long-standing case law that asks if “falling” is relevant to a Plaintiff’s Labor Law § 240(1) claims. By way of background, Labor Law § 240(1) focuses, inter alia, on cases involving workers falling from a height or objects falling from a height. This is usually described by the Courts as “harm directly flowing from the application of the force of gravity to an object or person.”
In Wilson v. Bergon Constr. Corp., 2023 NY Slip Op 04616 (2d Dep’t 2023), Plaintiff allegedly sustained personal injuries when, while working on a scaffold at a renovation project, he attempted to avoid a fall after the plank on which we was standing shifted under his feet. Plaintiff testified during his deposition that he felt himself start to go away from the wall, which was behind him, so he threw himself with his weight back against the wall to avoid falling from the scaffold. As a result of his maneuver, the defendants argued, he was able to catch himself and regain his balance without actually falling. Plaintiff argued that as a result of this maneuver, which was caused by, among other things, inadequate scaffolding, he sustained serious injuries.
After the conclusion of discovery, plaintiff moved for summary judgment on the issue of liability on the § 240(1) cause of action, and defendants cross-moved for dismissal of the § 240(1) cause of action. The lower court denied plaintiff’s motion and the branches of defendants’ cross-motion pertaining to § 240(1). As to the denial of plaintiff’s motion the lower Court reasoned that plaintiff had failed to establish his prima facie entitlement to summary judgment by eliminating all questions of fact:
[A]s plaintiff testified that he was in the process of straightening himself up after reaching down to grab a siding panel from a co-worker when the plank upon which he was standing shifted, causing him to lose his balance, a triable issue exists as to whether the scaffold failed to provide proper protection because it was not properly secured, or whether plaintiff simply lost his balance and injured himself as he was trying to regain it.
The Second Department disagreed with the lower Court’s holding:
“Labor Law § 240(1) may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall” from a ladder or scaffold (Ennis v. Noble Constr. Group, LLC 207 A.D.3d at 704; see Lopez-Dones v. 601 W. Assoc., LLC, 98 A.D.3d 476, 479; Lacey v. Turner Constr. Co. 275 A.D.3d 734, 735), and the fact that a plaintiff does not actually fall is irrelevant (see Militello v. Landsman Dev. Corp., 133 A.D.3d 1378, 1379; Abreo v. URS Greiner Woodward Clyde, 60 A.D.3d 878, 880). “as long as the ‘harm directly flow[ed] from the application of the force of gravity to an object or person” (Lacey v. Turner Constr. Co. 275 A.D.2d at 735, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501’ see Vislocky v. City of New York, 62 A.D.3d 785, 768) (emphasis as in original)
In its decision, the Second Department concluded plaintiff had made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability as to § 240(1) through the submission of an affidavit and deposition testimony that established that the scaffolding provided failed to afford proper protection for the work being performed, and that this failure was a proximate cause of his injuries. As to defendants’ contentions that the plaintiff losing his balance was the cause of the accident, the Second Department held that the defendants “did not offer any evidence, other than mere speculation,” to refute the plaintiff’s showing or to raise a bona fide issue as to how the accident occurred.
The focus here is twofold: (1) plaintiff does not need to “fall” in the colloquial, or even literal, sense of the word in order for § 240(1) protections to apply; and (2) with anything less than the support of direct testimony, the Second Department will likely categorize any assertion that plaintiff “lost his balance” as speculation (however informed the speculation may be) regarding the cause of the accident, rather than as giving rise to the question of fact sought to warrant denial of a plaintiff’s summary judgment motion. Further, the status of such speculation will act as a sword, striking a fatal blow to a defendant’s § 240(1) motion for summary judgment, as the speculation fails to establish that plaintiff is the sole proximate cause of the subject incident.
The Wilson decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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