The strict liability imposed by New York’s Scaffold Law, designed to protect construction workers who work in dangerous conditions and lack the leverage to ensure that building owners and contractors give them a safe place to work, has been somewhat weakened by a line of cases that hold that the Labor Law does not apply to construction site accidents where the employee’s conduct can be said to be the sole proximate cause of an accident. But most recently the Appellate Division, First Department reminded the bar that if plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, then the labor law applies and plaintiff is entitled to summary judgment even if the worker was concurrently negligent.
In Cuentas v. Sephora USA, Inc., 2013 WL 174093 (Jan. 17, 2013), the defendants asserted that the plaintiff was negligent because he was on top of the ladder he was using. However, the plaintiff testified that the ladder he was using was both unsteady as he was ascending it and too short to enable him to reach the window he was cleaning. The Appellate Division held that plaintiff’s testimony establishes prima facie that defendants failed to provide him with an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries.
The key language in the court’s decision is: “the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”, citing Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 . Because plaintiff established that no adequate safety device was provided, the court holds that his own negligence, if any, is of no consequence. Where plaintiff's negligence is, at most, only a concurrent cause of the accident, it is not a defense to liability under Labor Law § 240 and will not defeat plaintiff's motion.
The court distinguished plaintiff's case from those cases in which an adequate ladder was provided and there are issues of fact as to whether the accident occurred solely because of the plaintiff's loss of balance while using the ladder. In any event,
The court noted that since plaintiff's use of the ladder was consistent with his employer's instructions, any negligence on his part cannot be deemed to be the sole proximate cause of the accident.
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