In Ortega v. City of New York the plaintiff was injured when a temporary platform, "tremie rack," on which he was standing to pour concrete tipped over after it was struck by a rig. The trial court denied plaintiff summary judgment. The lower court found that questions of fact existed as to whether the accident was foreseeable and whether the platform was properly placed by the defendant.
In reversing the lower court and awarding plaintiff summary judgment, the First Department observed that "there is no requirement that plaintiff offer expert testimony on the foreseeability of the accident to prevail on a Labor Law 240(1) claim outside of the permanent structure context." The Court went on to state that foreseeability of injury can be gleaned from the very fact that the worker was engaged in one of the inherently dangerous activitivies governed by the Labor Law. The Court thus held: "We decline to extend the foreseeability requirement to anything other than permanent structures that are not safety devices by their nature."
Interestingly, although the device itself could be considered a "safety device" (see concurring opinion of Justice Sweeny), Justice Acosta specifically addressed the "foreseeability" issue in order to uphold the Court's responsibility to resolve "pure questions of law for the parties and the Bar." Justice Acosta noted that this was "particularly true in an area that is developing, such as grafting a negligence concept like foreseeability into a Labor Law 240(1) claim."