New York law places certain requirements on contractors and owners to ensure that construction workers have appropriate safety devices. Pursuant to New York Labor Law § 240, contractors, owners, and their agents must generally provide scaffolding, hoists, ladders, braces, ropes, and other devices to provide protection to a person employed in the construction of a building or structure.
In Somereve v. Plaza Construction Corp., the Appellate Division considered a motion for summary judgment as to § 240. The plaintiff testified he had been operating a prime mover to lift a load of bricks onto a scaffold. A colleague stood on top of the scaffold and indicated to the plaintiff whether the forks of the prime mover were properly positioned so that the plaintiff could raise the loads and place the bricks on the scaffold. When the load was about five feet off the ground, the machine flipped forward, ejecting the plaintiff.
The defendant’s project superintendent was deposed and testified that the plaintiff told him the machine had thrown him. He also testified that no one told him they had witnessed the accident. The defendant had subpoenaed two other people, but the plaintiff moved for partial summary judgment before the depositions were taken. The trial court granted partial summary judgment in favor of the plaintiff as to his Labor Law § 240 claim. The majority of the Appellate Division agreed. The appellate court found that the plaintiff had been using the machine to lift a load, and if the machine tipped over due to gravity, it did not offer adequate protection pursuant to Labor Law § 240.
The appellate court also found that additional discovery was not necessary on this issue. The defendant argued that the prime mover may have been carrying too much weight. The defendant also argued that the bricks may have come into contact with the scaffold, causing the prime mover to tip. The Appellate Division found that additional depositions would at best address comparative negligence, which is not a viable defense under Labor Law § 240(1).
Additionally, the court noted that the defendants had not shown that the laborer who had allegedly witnessed the accident was available to testify. The defendants had previously subpoenaed him, but the deposition had not occurred. Furthermore, the defendants could only speculate as to his testimony. A hope that additional discovery will find evidence that could defeat summary judgment is not sufficient. The other witness the defendants had subpoenaed was a supervisor who had already provided an affidavit in the defendants’ favor. This supervisor had not actually seen the accident, and the Appellate Division found further testimony from him would not provide additional information.
The majority found that there was no evidence in the record that showed the plaintiff had failed or refused to use a safety device that was made available to him. There was no evidence he had disregarded a supervisor’s instructions on operating the machine. Furthermore, the majority noted that if a statutory violation is a proximate cause of the plaintiff’s injuries, the plaintiff cannot be solely at fault. Negligence by the plaintiff would not prohibit his claim from succeeding. The majority found that the defendant’s “failure to provide a proper hoisting device” was a violation of § 240(1).
New York construction accident attorney Nicolas Rose has a thorough understanding of the “Scaffolding Law” and the other provisions of the New York Labor Law that place liability on owners and contractors. If you have been injured at an unsafe construction site, call us today.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Somereve v. Plaza Construction Corp., February 18, 2016, Supreme Court of the State of New York, Appellate Division, First Judicial Department
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