First Department Issues Reminder: Falling Not Required for §240(1) Cause of Action

Labor Law § 240(1) was enacted, mainly, to protect construction workers from gravity-related risks, of which there are two types: (1) stuff falling on workers and (2) workers falling from stuff.  Notably, the statute protects against risks, and as the First Department reminds us, the falling is optional. 

In York v. Tappan Zee Constructors, LLC, 2024 NY Slip Op 00826 (1st Dep’t 2024), the First Department modified a Supreme Court, New York County order which granted plaintiff’s motion for summary judgment as to Labor Law § 241(6), which was predicated on a violation of Industrial Code 12 N.Y.C.R.R. § 23-1.7(d), and denied plaintiff’s motion as to Labor Law § 240(1).  The lower Court’s motion further granted the defendant’s motion for summary judgment, dismissing plaintiff’s Labor Law § 240(1) claim.  We also note, the lower Court denied defendant’s motion as to plaintiff’s Labor Law § 200. 

In York, plaintiff alleged he was taken by boat to a worksite at the Tappan Zee Bridge where defendant was the general contractor.  The boat docked at one of two barges on the water.  While attempting to cross from one barge to another, without a gangway in place, plaintiff slipped and fell on an icy condition.  Plaintiff almost fell into the approximately three-foot gap between the barges into the water 8-12 feet below, but was able to grab onto another worker in front of him, who then pulled him onto the barge.  Plaintiff further alleged that he was unable to see the icy condition before he fell because it was dark as there was no lighting on the barges.

Agreeing with the lower Court, the First Department held that plaintiff established his entitlement to summary judgment as a matter of law as to his Labor Law § 240(1) cause of action.  Though the injuries resulted from a slip and fall on an alleged icy condition on the barges which were at the same level, plaintiff fell while struggling to avoid the elevation-related risk of falling into the water.  The First Department noted that the site safety plan required a gangway between the barges, and the absence of the gangway was a proximate cause of the subject accident. 

As a result of the modification of the lower Court’s order which granted plaintiff’s motion for summary judgment, the First Department deemed arguments by defendant that plaintiff’s Labor Law § 241(6) claim should have been dismissed academic in nature.

With regard to plaintiff’s Labor Law § 200 claims, the First Department upheld the lower Court’s ruling that denied defendant’s motion for summary judgment.  Defendant failed to meet its initial burden of demonstrating an absence of material issues of fact as to whether it had constructive notice of the icy condition.    

The York decision can be found here.

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

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