First Department Debates How Much Effort Court of Appeals Requires a Worker To Make To Search For Safety Devices At The Construction Work Site
In Cherry v. Time Warner, Inc., --- N.Y.S.2d ----, 2009 WL 2497974 (1 Dept. August 18, 2009), the plaintiff was securing sheet rock to the ceiling on the third floor when he fell off a baker's scaffold onto the concrete floor eight feet below. The scaffold measuring approximately two feet wide by six to eight feet long had guardrails on only two of its four sides. The Appellate Division, First Department was called upon to decide whether safety guardrails were in place on the scaffold from which the plaintiff fell, and if they were not in place, whether they were made readily available on site for the plaintiff's use. This issue was crucial because if the guardrails were found to be readily available, the workers failure to use a scaffold having guardrails on all four sides of it would be considered the sole proximate cause of the accident. As such, the worker would not be entitled to the protections of Labor Law 240(1).