First Department Threads the Needle on “Loss of Balance”
If you haven’t been versing yourself in the Labor Law in your spare time, it can seem simply like “plaintiff always wins.” Usually you’d be right, and that sentiment is true in the case discussed below. However, this case stands out for two reasons: (1) it gives us a review of what specifically plaintiff’s burden is when making a prima facie showing of entitlement to summary judgment in a Labor Law § 240(1) (“The Scaffold Law”) cause of action; and it provides (2) a review of the needle-threading that the “loss of balance” defense needs to navigate to successfully raise a question of fact and defeat a plaintiff’s summary judgment motion on a § 240(1) claim.
In Rodas-Garcia v. NYC United, LLC, 2024 NY Slip Op 01687 (1st Dep’t 2024), plaintiff alleged that he fell from an unsecured 12-foot A-frame ladder that suddenly moved as he was reaching overhead to apply plaster to a ceiling. At the conclusion of discovery, the parties moved for summary judgment on plaintiff’s Labor Law § 240(1) claim. The Supreme Court, New York County granted plaintiff’s motion and denied defendant’s motion. The First Department unanimously upheld the lower Court’s decision. The following is noteworthy for the purposes of the discussion below:
- Plaintiff inspected the ladder and found it to be in good order before using it;
- Defendant submitted evidence (in a form not specified) that plaintiff fell while he was repositioning the ladder, rather than reaching to perform plaster work; and.
- Defendant submitted medical evidence noting that plaintiff lost his balance and fell from the ladder.
Addressing plaintiff’s inspection of the ladder prior to use, the First Department cited long-standing precedent that to make a prima facie showing of entitlement to summary judgment on a Labor Law § 240(1) claim, plaintiff is not required to demonstrate that the ladder was defective, and his inspection of the ladder prior to its use is irrelevant.
In addressing defendant’s evidence as to plaintiff’s repositioning of the ladder, the First Department held that it was solely inadmissible hearsay, but stated if it were to be considered, at most, it established comparative negligence on the part of plaintiff, which is not a defense to a Labor Law § 240(1) claim.
Lastly, the First Department rejected the argument made by defendant that purported to establish that plaintiff lost his balance as opposed to falling from a ladder that suddenly moved. Procedurally, it declined to consider this argument, as the medical evidence was not included in the record and the issue that plaintiff lost his balance rather than fell from the ladder that suddenly moved was improperly raised for the first time on appeal.
Despite the procedural rejection, the First Department indicated that if this argument were considered it would be substantively rejected, as the argument that plaintiff fell because he “lost his balance” did not contradict plaintiff’s consistent testimony that he “fell because the ladder suddenly moved.” The First Department then cited to Rom v. Eurostruct, Inc., 158 A.D.3d 570, 571 (1st Dep’t 2018) which held that a plaintiff’s testimony that he “lost his balance and fell because the ladder moved” (emphasis added) was not determined to be inconsistent for the purposes of Labor Law § 240(1) just because plaintiff “lost his balance.”
In plain English, this means that the order of events matters. As we have reported before, if plaintiff simply “loses his balance” and falls from a ladder, it may be sufficient to establish a question of fact and defeat a summary judgment motion by plaintiff involving a Labor Law § 240(1) claim. However, as the First Department holds here, if plaintiff testifies that he lost his balance and fell because the subject ladder suddenly moved, he has made a prima facie showing of entitlement to summary judgment on his Labor Law § 240(1) claim.
The Rodas-Garcia case can be found here.
The Rom case, cited to by the First Department in this case, can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.