In a recent decision, Calloway v. American Park Place, LLC, 2023 NY Slip OP 05830 (4th Dep’t 2023), the Appellate Division, Fourth Department, inter alia, upheld a Supreme Court, Monroe County decision that granted plaintiff’s partial motion for summary judgment on liability pursuant to Labor Law § 240(1).

Plaintiff commenced an action sounding in common law negligence and, inter alia, Labor Law § 240(1), seeking damages for an injury he sustained when he fell while working on a ladder in a building owned by defendant American Park Place, LLC.  Plaintiff’s employer was hired to install new plumbing, heating, and cooling systems in the building.  Just prior to the incident, plaintiff and his coworker were removing original ductwork, which was in long strips.  To do so, plaintiff and his coworker had to remove the straps holding the ductwork to the ceiling.  Plaintiff and his coworker then would carry the ducts on their shoulders, down their respective ladders.  While one duct was being removed from its straps, the duct slipped from his hand, hit a wall, then hit plaintiff’s ladder, causing him to fall. 

Plaintiff moved for partial summary judgment.  Defendants cross-moved for summary judgment seeing dismissal of the complaint.  Plaintiff’s motion was granted, and defendants’ cross-motion, with respect to Labor Law § 240(1) was denied.  Defendants appealed.

In its decision, the Fourth Department held that plaintiff met his prima facie burden by establishing that the ladder “was not placed” to give proper protection to plaintiff, and that defendant had failed to raise a triable issue of fact as to whether plaintiff’s own conduct, rather than any violation of § 240(1) was the sole proximate cause of the subject incident.

The Fourth Department went further, addressing defendants’ expert submission, which stated that the ladder provided was stable and sufficient for him to safely perform the job, such that it was structurally sound and not defective.  In addressing this expert’s opinion, the Fourth Department opined that these assertions were ultimately not relevant to the issue of whether the ladder was properly placed. 

Defendants also relied on testimony from plaintiff’s coworker that he believed that the duct fell due to plaintiff’s failure to hold it securely and that plaintiff fell due to his failure to keep his balance.  The Fourth Department held, in this respect, that at most, this established contributory negligence on the part of plaintiff. 

Here, the Fourth Department is interpreting the verb “placed” to fall under “shall furnish or erect, or cause to be furnished or erected…” as found in the body of Labor Law § 240(1).  When considering if a ladder was adequately placed to provide proper protection, the Court will not consider whether the ladder is structurally sound, stable, and sufficient to perform the job. 

The Calloway decision can be found here.

For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

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