The case involving a 47-story fall of a scaffold where one of two brothers on it died and the other lived (albeit with catastrophic injuries) is wending its way through the court. This past week the estate of the deceased window washer was granted summary judgment pursuant to Labor Law 240(1) (the scaffold law) in Cumbicos v. Tractel Inc., 103247/08, NYLJ 1202473921555, at *1 (Sup., NY, Decided October 25, 2010). The decision highlights the utter carelessness of the company hired to maintain the scaffold for attempting to repair the ends of brand new cables that were delivered in defective condition rather than replacing the defective cables with new ones in good condition. The employee who made the repair was new on the job, was receiving on the job training, and had no prior experience making this type of repair.
On December 7, 2007, Edgar and Alcides Moreno, experienced window washers for high-rise buildings went to the roof of the 47-story building where they prepared to enter the suspension scaffold that would take them down the side of the building to where they would wash the exterior windows. Plaintiffs allege as Edgar and Alcides Moreno entered the scaffold, and before they loaded their window-washing equipment onto the platform, the cables connecting the scaffold to the roof failed, and the brothers and the scaffold fell 47 stories to the ground. Inspectors from the New York State Department of Labor (DOL) arrived at the scene and conducted an investigation.
In its report, the DOL concludes that the primary cause of the accident was the improper repair of the cable, the failure to test the success of the repair after it was completed, and the failure of the buildings owner, managing agent, and the maintenance company to provide adequate training to the window cleaners contributed to this accident.
In addition, the window cleaners’ failure to use fall protection equipment that was provided to them on the day of this accident would not have prevented the accident but could have prevented the fatality. New York County Supreme Court Justice Joan A. Madden held that Labor Law 240(1) applied to the accident because the defendants failed to provide the window washers with equipment that would give them proper protection for workers against the special hazards that arise when the work site is elevated.
The Court rejected the maintenance companys argument that the Labor Law did not apply to it upon the grounds that it was simply a provider of monthly maintenance to the scaffold. The Court held that the maintenance companys contract with the buildings managing agent rendered it the owners agent to the extent that the contract required the maintenance company to install the cables and the companys employees had in fact installed them. The defendants contended that the plaintiffs decedent was a recalcitrant worker and the sole proximate cause of his injuries for not wearing a harness at the time of the accident. Laborers deemed to be recalcitrant of the sole proximate cause of their injuries do not receive the benefit of Labor Law 240(1). However, the Court rejected these defenses, holding that the failure of the cables was the more proximate cause of the accident.
Two of the plaintiffs claims were dismissed by the Court. First, the claim pursuant to Labor Law 202 (window washers law) was not supported by the requisite violation of a specific provision of the Industrial Code. Second, plaintiffs claim pursuant to Labor Law 241-a, which provides for the protection of workmen in or at elevator shaftways, hatchways and stairwells was held to be inapplicable to the matter.
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