In Ortiz v. Varsity Holdings, 2011 NY Slip Op 09161, the Court of Appeals held that questions of fact existed as to whether a safety device under Labor Law § 240 would have prevented a plaintiff’s fall from a six-foot tall dumpster. The plaintiff alleged that he had either one or both feet on the dumpster’s eight-inch ledge in order to rearrange and add debris to the dumpster. Due to procedural inferences favoring the plaintiff, the Court distinguished Toefer v. Long Is. R.R., 4 NY3d 399 (2005), where there was no elevation-related risk from a “four-to-five-foot descent from a flatbed trailer.”
As to the existence of an elevation-related risk, the Court added that the parties failed to demonstrate that plaintiff’s position on the dumpster either was or was not “necessary to the task.” Consequently, plaintiff’s assertion that he was “required to stand on or near the ledge” was sufficient in “context . . . and without contradictory evidence” to prevent summary judgment. Significantly, however, the Court added that the assertion alone could not be the basis for granting summary judgment to the plaintiff.
Taken collectively with the Court of Appeals’ other recent Labor Law § 240 decisions, this decision reflects a continued shift by the Court of Appeals toward finding that issues such as “adequacy of a safety device”, “availability of a safety device” and "necessity of performing the work in the manner in which it was performed” are questions of fact for the jury.