First Department Upholds Vibes Not Sole Proximate Cause of Plaintiff’s Accident

In a recent decision, the Appellate Division, First Department upheld the lower Court’s decision that granted plaintiff’s motion for summary judgment as to his Labor Law §240(1) claim.  In Asian v. Flintlock Constr. Servs., LLC (2024 NY Slip Op), plaintiff alleged that his supervisor instructed him to use a chipping hammer weighting approximately 70 to 100 pounds to break up bricks located at the top of a wall, as part of a construction project involving the demolition of a building. 

Plaintiff initially performed his work while standing on a scaffolding platform, but he complained to his supervisor that he was unable to perform the work in a “comfortable or safe” manner and apply sufficient force to the bricks, because the scaffold was too short to reach the top of the wall.  Plaintiff’s supervisor rejected the request to raise the scaffold, and directed plaintiff to finish the work while standing on top of the wall.  Plaintiff testified that his consequent use of the chipping hammer while standing on top of the wall created vibrations that caused him to slip and fall. 

In its decision, the First Department found that the Supreme Court, New York County properly granted plaintiff’s motion on the issue of liability as to Labor Law § 240(1).  In granting plaintiff’s motion, the lower Court found that the failure to provide a scaffold that was a proper height to protect him from a gravity-related injury, namely, falling off the wall.  The First Department further agreed with the lower Court that plaintiff was not the sole proximate cause of his accident, even though he created the vibrations that led to the fall, because he was performing the work “consistent with his employer’s instructions.”

Thus the fact that the scaffolding provided by plaintiff’s employer was insufficient to protect him from a gravity-related injury (falling from the wall) was in and of itself sufficient to preclude a finding that plaintiff was the sole proximate cause of his accident.  As the lower Court also noted, the decision to work from the “precarious position” on top of the wall goes to the issue of comparative fault, which is not a defense to Labor Law § 240(1). 

The Asian decision can be found here.

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

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