Fourth Department Airs Out Plaintiff’s Claim Involving Diesel Fumes
In a recent decision, the Appellate Division, Fourth Department reversed a lower Court opinion that granted defendants’ motion for summary judgment and dismissed plaintiff’s Labor Law § 240(1) claims. The lower Court decision had also denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) claims.
In Wolfanger v. Once Again Nut Butter Collective, Inc., 2024 NY Slip Op 01452 (2024), plaintiff alleged he sustained injuries while working on the construction of a warehouse owned by the defendant. The general contractor on the project subcontracted painting work to plaintiff’s employer. While spray-painting at a high elevation in the interior of the subject building, plaintiff experienced dizziness and fell from a boom lift that was emitting noxious diesel fumes. Plaintiff alleged that the defendants failed to ensure that the boom lift was properly constructed, placed or operated to give him proper protection for the work. At the conclusion of discovery, all parties moved for summary judgment. In its decision, the Supreme Court, Monroe County found that “plaintiff’s injuries were not caused by an elevation-related risk” and concluded that the defendants provided plaintiff with the necessary safety devices. Further, any fumes emitted by the boom lift were an incidental consequence of its physical placement.
In reviewing the lower Court’s decision, there are a few factual assertions that are relevant:
- Plaintiff testified that he was wearing a harness and was clipped to the basket while painting at the highest peak of the ceiling;
- Plaintiff’s fall from the boom lift was unwitnessed and he has little memory of the events;
- When plaintiff was discovered on the ground, the boom lift was approximately six to eight feet from the ground, plaintiff was still wearing his harness and the gate/door to the boom lift was closed; and,
- Plaintiff had seemingly become unclipped from the bucket but testified that he had no memory of unclipping his harness or lanyard from the basket and that when he started to feel dizzy, he was still hooked into the tie-in spot.
In its decision, the Fourth Department rejected the lower Court’s findings and their implication on the lower Court’s decision. Citing to Fourth Department precedent, it again held that plaintiff need not demonstrate the precise manner in which the accident happened or that the injuries occurred were foreseeable. It is “sufficient that he or she demonstrate that the rise of some injury from defendants’ conduct was foreseeable.” The Fourth Department focused on the undisputed facts that plaintiff fell from the lift while it was raised six to eight feet in the air and plaintiff’s submission that causally related his injuries to the fall from the lift. Further, it was undisputed that plaintiff was using a boom lift that discharged fumes into the factory. Plaintiff thus met his prima facie burden on his motion by establishing that his fall was a “normal and foreseeable” consequence of the placement of the lift.
Defendants failed to raise a triable issue of fact as to whether the hazard of fumes “is of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve them of liability.” Defendants also failed to raise an issue of fact whether plaintiff deliberately unclipped his safety harness, and that this issue, “at best,” presents a question of comparative negligence, which is not a defense to liability under Labor Law § 240(1).
The Wolfanger decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq..
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