Plywood – Historically, Not Awesome for Trampolines

Sometimes you come across a fact pattern that reads like it’s a hypothetical that a diabolical professor dreamed up to torture 1L law students on their final examinations.  This is one such fact pattern.

In a recent decision, the Appellate Division, First Department unanimously affirmed a Supreme Court, Bronx County decision that granted summary judgment to plaintiff on his Labor Law § 240(1) claim. 

In Guaraca v. West 25th St. Hous. Dev. Fund Corp., 2024 NY Slip OP 02146, plaintiff, a masonry worker, was instructed to build a wall around a trash chute hole which was adjacent to an air conditioning duct hole on the second floor of the subject construction site.  Plaintiff jumped on a piece of plywood covering the duct hole to “test its strength.”  The unsecured planking cracked and plaintiff fell through the duct hole and down into the basement of the construction site, resulting in injuries.

Notably, the defendant’s opposition begins:

Initially, in terms of its opposition to the [p]laintiff’s motion, [p]laintiff, an experienced construction worker, knowingly bounced on a piece of plywood covering a hole that extended from the second floor to the basement.

Defendant’s opposition continues, providing context, indicating that plaintiff and his co-worker were instructed to cover the hole and were instructed to cover it with two pieces of plywood, so it would be secure.  However, according to the testimony of plaintiff’s non-party co-worker, a second piece of plywood was not used because plaintiff told his co-worker that the single piece would “hold his weight.”   

The defendant’s opposition then cites to plaintiff’s deposition testimony:

Plaintiff then began to bounce his weight on the plywood over the subject hole with just one piece of plywood.  The plywood held the first time [p]laintiff bounced on the plywood.  Plaintiff then bounced a little harder a second time on the plywood, and the plywood still did not break.  Plaintiff then bounced a third time, even harder, and the plywood then broke. (citations omitted)

In its decision, the First Department reiterated its holdings in prior decisions in that “§ 240(1) is violated when workers fall through unprotected floor openings” and agreed with the lower Court that plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secure at the time of the accident.

The First Department rejected the defendant’s recalcitrant worker defense, noting the record held no evidence that a second piece of plywood, which plaintiff allegedly believed was unnecessary, would have constituted an adequate safety device.

You’ll recall that comparative negligence is not a bar to summary judgment in New York, and the First Department indicated that any negligence by plaintiff in testing the plywood would speak to comparative negligence. 

The Guaraca decision 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.

[1] There will be as many Taylor Swift references as possible for the foreseeable future.  The author makes no apologies for this.