Thursday, February 17, 2011

Fall From A Height Held Not to Be Labor Law 240(1) Related Because Plaintiff Was Not Hired To Perform Elevation-Related Tasks

In Simoes v. City of New York, the plaintiff was working as a flagman directing traffic at a renovation project. A manlift being used in the course of the renovations malfunctioned. As such, it was driven to a nearby vacant lot. Significantly, however, the manlift was unable to ascend the curb next to the lot, so "plaintiff climbed up the boom and into the aerial basket in an attempt to use the controls in the basket to negotiate the manlift over the curb. Moments later, a foreman drove another vehicle toward the manlift in an attempt to push it into the lot. When that vehicle made contact with the manlift, the manlift fell over with plaintiff still within the aerial basket."

In a unanimous opinion, the First Department affirmed the dismissal of plaintiff's Labor Law § 240(1) claim, holding that plaintiff "was not protected by the statute since his duties as a flagman did not entail elevation-related risks"(citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; Modeste v Mega Constr. Inc., 40 AD3d 255 [2007]; Jamison v County of Onondaga, 17 AD3d 1142, 1143 [2005]).

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