In a recent decision, the Second Department reversed a Supreme Court, Rockland County Order granting defendant/third-party plaintiff and third-party defendants’ motions for summary judgment dismissing the cause of action alleging, inter alia, alleging violation of Labor Law § 240(1).
In Iannaccone v. United Natural Foods, Inc., et al., — N.Y.S.3d —, 2023 N.Y. Slip Op. 04372 (2d Dep’t 2023), plaintiff alleged he sustained injuries when he set up at 24-foot extension ladder against a light pole, with the base of the ladder resting on top of small rocks described as “landscaping” rocks. While plaintiff was on the ladder, the rocks gave way and then shifted the ladder, causing him to fall.
At the conclusion of discovery, defendant, along with third-party defendants (also plaintiff’s employers), moved for summary judgment, relying on Plaintiff’s deposition transcript. The Supreme Court granted the separate motions of defendant and third-party defendants and plaintiff appealed.
In short, New York’s Labor Law § 240(1) requires that safety devices such as ladders be so placed and operated as to give proper protection to a worker. To prevail on a cause of action, plaintiff must prove that the defendant violated the statute, and that such a violation was a proximate cause of the injuries. See Exley v. Cassell Vacation Homes, Inc., 209 A.D.3d 839, 175 N.Y.S.3d 579 (2d Dep’t 2022).
However, where the plaintiff is the sole proximate cause of his or her injuries, there can be no liability under labor Law § 240(1). See Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003). A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she:
- had adequate safety devices available;
- knew both that the safety devices were available, and that he or she was expected to use them;
- chose for no good reason not use the safety devices; and
- would not have been injured had he or she not made that choice.
See Biaca-Neto v. Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 121 N.Y.S.3d 753 (2020).
In reversing the Supreme Court, the Appellate Division, Second Department held that the defendants and third-party defendants failed to establish, prima facie, that the plaintiff’s actions were the sole proximate cause of his injuries. The Appellate Division, Second Department cited plaintiff’s testimony which indicated he could have placed the ladder in the driveway, where it would not have been resting on the rocks, but that it would have been unsafe to do so because trucks utilized the driveway to access the property.
Further, the Court noted that the defendant and third-party defendants failed to submit evidence that the plaintiff’s injuries could have been prevented if plaintiff had secured the ladder to the light pole with tie downs, which were not available on the jobsite, but were available at plaintiff’s employers depot.
The word “adequate” is doing a lot of heavy lifting here. The implication here seems to be that, according to the Second Department, while a ladder is a “safety device,” establishing that plaintiff had “adequate safety devices” would need to be supported by evidence that both the ladder and perhaps tie downs were available on the jobsite, rather than offsite. There’s also a question as to whether the subject ladder becomes not “adequate” due to the fact that it is placed on gravel rather than on asphalt.
The Iannaccone opinion can be found here.
For additional questions, please contact Michael J. Shields and/or Philip D. Priore.
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