New York Labor Law § 240(1) requires contractors and owners to provide certain safety devices, including scaffolding, hoists, and ladders, for the protection of the workers. In the recent case of Reyes v. Campo Bros., the plaintiff filed a claim under this section, but there were conflicting accounts of how his fall occurred.
The plaintiff fractured his back and sustained other injuries in a fall while working as a roofing technician for a subcontractor on a job site. His job on the day of his injury included attaching ice shields to the roof edges and the valleys of connecting roof lines. While attaching an ice shield to a valley, he allegedly slid backwards and fell off the roof. The roof was slippery because of frost or black ice. The plaintiff was not provided with any safety devices to prevent or protect him from a fall, other than the ladder he used to climb up to the roof.
The plaintiff filed suit against the property owner and the company that managed the job site, including a claim under Labor Law § 240(1). He subsequently moved for partial summary judgment on a claim under Labor Law § 240(1).
The defendants argued that there were genuine issues of fact remaining, particularly around differing accounts of the accident. The defendants pointed to hospital records that indicated that the plaintiff had told his medical providers that he fell from the ladder, not from the roof. The plaintiff argued that there was an error in the hospital report and that he had told the nurse that he fell from the roof. He argued that there was no discrepancy between what he told the nurse and what he later stated in his deposition. He further argued that the hospital record was inadmissible hearsay.
The court noted that an entry in a hospital record is generally admissible as a business record if it is germane to diagnosis or treatment, but even if it is not germane to diagnosis or treatment, it is admissible as an admission by a party if it is inconsistent with the position the party takes at trial, and there is evidence that connects the party to the entry. Thus, if there was sufficient evidence connecting the plaintiff to the entry, the hospital record would be admissible, even if it was not germane to diagnosis or treatment. The court found sufficient evidence to connect the plaintiff to the entry in the plaintiff’s own reply affidavit, in which he stated that he remembered speaking to the nurse about the occurrence. Although the plaintiff argued that the entries in the record were not correct representations of what he told the nurse, the court found that the plaintiff’s challenges did not establish that he was not the source of the information.
The court pointed out the plaintiff’s original complaint had also indicated he had fallen from the ladder, although the plaintiff subsequently amended the complaint. New York case law has held that an admission in a pleading is evidence of the fact admitted even after the pleading is amended. The court found that the inconsistencies gave rise to issues of fact that precluded summary judgment, and it denied the plaintiff’s motion.
Although the plaintiff did not succeed in his motion for summary judgment, he will still have an opportunity to proceed with his case. The discrepancies in his accounts of the accident, however, may make his case more difficult. The discrepancies raised questions of fact regarding how the accident occurred, and the court also suggested that they raised questions of credibility. This case shows the importance of ensuring that the pleadings are factually accurate.
Our New York construction accident attorney understands the importance of fully investigating the facts of a case. If you have been injured in a construction accident, we can help you.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
More Blog Entries:
New York Ladder Injuries May be Compensable, May 5, 2014, New York Injury Lawyer Blog
Image: FreeImages.com/Chris Chidsey
