Co-Worker Loss of Control Ramps Up Summary Judgment Finding Under § 241(6)
A pallet jack, a ramp, and slippery conditions. Labor Law lawsuit ensues.
In a recent decision, the Appellate Division, Second Department upheld a Supreme Court, Kings County decision that granted in part and denied in part plaintiff’s motion for summary judgment. Specifically, the lower Court denied plaintiff’s motion as to his Labor Law § 240(1) cause of action but granted plaintiff’s motion as to his Labor Law § 241(6) cause of action as predicated on a violation of Industrial Code § 23-1.7(d).
In Medina v. 1277 Holdings, LLC, 2024 NY Slip Op 00317, plaintiff alleges he sustained injuries while working at a construction project. At the time of the subject incident, plaintiff and a coworker were pushing a pallet jack up a plywood ramp with the coworker lost control of the pallet jack. The jack his plaintiff’s shoulder, and plaintiff fell from the ramp onto the floor. Plaintiff testified during his deposition that the ramp was wet, slippery, and covered in frozen water at the time of the accident.
Notably, there’s no indication of how high the ramp was, the degree of inclination, or how far plaintiff fell from the ramp to the ground at the time of the subject incident. The decision from the lower Court comes in the form of a short-form order after oral argument was held.
In any event, the Appellate Division, Second department agreed with the lower Court, holding that plaintiff failed to establish prima facie entitlement to summary judgment as a matter of law on the issue of liability as to his Labor Law § 240(1) cause of action because he failed to eliminate triable issues of fact as to whether adequate safety devices were provided to him at the work site and, if not, whether the absence of such devices was a proximate cause of the subject incident. The Second Department further noted that plaintiff’ expert failed to establish that the safety devices provided to the plaintiff, including the pallet jack and the ramp, were inadequate.
As to the Labor Law § 241(6) cause of action, as predicated on 12 NYCRR 23-1.7(d), plaintiff made his prima facie showing, as that Industrial Code section requires employers to remove or cover certain substances, including ice, snow, and water that may cause slipper footing, and violations of that industrial code section (i.e., the failure to remove the frozen water) proximately caused the subject incident.
Interesting decision here from the Second Department, especially with regard to the Labor Law § 240(1) cause of action, as plaintiff fell from a height. This would normally give you a gravity related risk and usually there is some kind of device enumerated in the statute, the failure of which caused the subject incident.
The Medina decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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