Monday, November 21, 2016

Court of Appeals Modifies First Department Decision re: Labor Law § 240(1) and Electric Shock

**** Update: The Court of Appeals has modified to deny plaintiff's motion for summary judgment, and remitted the matter to the First Department for consideration of additional issues. Original Blog Entry below. ****

In a concurring opinion in Nazario v. 222 Broadway, LLC, the First Department adheres to its precedent that a worker who falls from a ladder after sustaining an electric shock is prima facie entitled to judgment on liability pursuant to Labor Law § 240(1).  Here, the worker fell along with the ladder after receiving the shock. The majority found that because the ladder was unsecured, allowing both the worker and the ladder to fall, the plaintiff had established his entitlement to judgment on liability under the statute.  The majority rejected the defendants' contention that the ladder was defect-free, and therefore the plaintiff was obligated to prove that the defendants had failed to provide him with an appropriate safety device.

Justice Tom concurred, but felt constrained to do so by the Court's prior precedent.  Notably, however, Justice Tom disagreed with the majority that it is enough for a plaintiff to show that he was injured falling from a defect-free ladder after receiving an electric shock.  Instead, Justice Tom noted that it is the plaintiff's burden to prove both the absence of an adequate safety device and proximate cause. Here, falling from a defect-fee ladder would ordinarily raise a question of fact as to the sufficiency of the safety device, even when the falling worker received an electric shock.  He noted that the Court's prior holdings had "created a special class of decisions which, contrary to the foundational Court of Appeals holdings in this area, remove a plaintiff's quintessential burden to establish causation under the Labor Law."

Finally, Justice Tom stated that the decisions of the First Department in this regard were contrary not only to the Court of Appeals, but also to the other three Departments of the Appellate Division, which have all found that questions of fact existed as to the adequacy of the safety device where the injured worker fell after receiving an electric shock (see Grogan v Norlite Corp., 282 A.D.2d 781 [3d Dept 2001]; Donovan v CNY Consol. Contrs., 278 A.D.2d 881 [4th Dept 2000]; Gange v Tilles Inv. Co., 220 A.D.2d 556, 558 [2d Dept 1995]).