First Department Finds Distinct and Independent Questions of Fact Regarding Adequacy of Safety Device and Recalcitrance/Sole Proximate Cause of Worker In Labor Law § 240(1) Case

In Albino v. 221-223 W. 82 Owners Corp., the plaintiff was injured in a fall from a roof while attempting to step into a scaffold that was located on the side of the building. Plaintiff had planned to use the scaffold to descend from the roof. As relevant here, the accident was unwitnessed and plaintiff gave differing accounts as to why he fell. Immediately after the accident he told his foreman that he fell because his foot slipped as he stepped onto the scaffold. Plaintiff testified at his deposition, however, that a wire attached to the scaffold snapped, causing the scaffold to swing away from the building, which resulted in plaintiff's fall.

In addition, although plaintiff testified that he could not use the harness he had in his possession because there were no safety lines, the foreman testified that he had worked with plaintiff earlier in the day and they had both had worn attached harnesses. The foreman also contradicted plaintiff's testimony that plaintiff would have been fired if he waited until safety lines were installed. the foreman indicated that he instructed all of his employees, including plaintiff, to wear safety equipment and that when he left plaintiff in charge he never instructed plaintiff to work without wearing an attached safety harness.

The First Department affirmed the denial of plaintiff's motion for partial summary judgment on liability pursuant to Labor Law § 240(1), finding that questions of fact existed both as to whether plaintiff was the sole proximate cause of his accident and whether the scaffold was an adequate safety device. 

Notably, the Court specifically found that these two questions were distinct and independent. More specifically, "a factfinder could rationally determine, based on the foreman's testimony concerning plaintiff's original account of the accident, that plaintiff fell simply because he misplaced his foot when stepping onto the scaffold, without the scaffold moving or otherwise malfunctioning or failing. It would follow from such a finding — even assuming that the harness issue is determined in plaintiff's favor — that his injuries were not proximately caused by any violation of section 240(1)." Simply stated, if the jury were to find that the scaffold was adequate, then the lack of a safety line would not have been a violation of the statute.