Wade Clark Mulcahy LLP

New York Labor Law § 240(1) imposes strict liability on property owners and general contractors who fail to provide adequate safety equipment to protect workers from elevation related injuries on construction sites. A plaintiff’s failure to take readily available safety measures is not a defense to strict liability but can act as a defense to § 240(1) liability on the issue of proximate cause.   

The Second Department recently addressed these issues in Don Gregory Chiarella v New York State Thruway Authority. In that case, the plaintiff sustained injuries while working on the Mario M. Cuomo Bridge. He was descending from an upper walkway to a lower walkway using a wooden pallet that had been installed by one of his coworkers. The handrail swung away from him causing him to lose his balance, the pallet to shift, and the plaintiff to fall onto the lower walkway.

In the resulting lawsuit, plaintiff moved for summary judgment on his § 240(1) claims as well as a claim for a violation of Labor Law § 241(6) as was predicated on violations of certain New York City industrial code sections. The defendant filed a cross motion seeking dismissal of the § 241(6) claims based on other code provisions, and also argued that the sole proximate cause of the accident was the claimant’s decision to use the pallet and not a readily available ladder. The Court of Claims denied plaintiff’s motion and granted defendant’s cross motion as to the § 241(6) claims.

As to § 240(1) liability, the Second Department recognized that there can be no liability where the plaintiff is the sole proximate cause of his or her injuries, particularly where plaintiff chose not to use readily available safety equipment. However, the Court found that plaintiff made a showing that he was entitled to judgment as a matter of law on the § 240(1) claim as the evidence showed that the defendant’s failure to provide him with a ladder to traverse the vertical distance between walkway platforms was a proximate cause of the accident. The Court also found that the defendant failed to submit sufficient evidence to raise a triable issue of fact as to whether a proper ladder was readily available or whether he had been instructed to use a ladder rather than the wooden pallet. Accordingly, the Court found that the Court of Claims should have granted that aspect of plaintiff’s motion based on the § 240(1) violations.

The Court also found that the Court of Claims should have granted plaintiff’s § 241(6) claims as to liability based on a violation of certain codes requiring ladders and safety railings to be provided. However, the Court of Claims properly granted defendant’s cross motion as to § 241(6) liability based on other inapplicable codes.

The takeaway from this case is that a defendant must be able to provide compelling evidence that adequate safety equipment was readily available, workers were instructed on how to properly use such equipment, and plaintiff chose not to use the equipment in order to successfully assert a proximate cause defense in a Labor Law § 240(1) lawsuit.