First Department Finds Sole Proximate Cause In Labor Law Action Where Plaintiff Chose the Method of Securing Equipment That Fell and Contributed to His Injury

In Guido v. DASNY, plaintiff parked his truck on top of debris outside of a construction site where his employer was performing work, causing his truck to "tilt." As he was loading his employer's ladders into the truck, they slid causing him to fall to the ground. In dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims, the First Department found that the "tilt" was de minimis, and thus not an elevation-related hazard. The Court further found that the Industrial Code provision relied on by plaintiff, 12 NYCRR §23-1.7(e), regarding clearing debris did not apply because the area where he was injured was not a passageway or working area. And, plaintiff was nonetheless the sole proximate cause of his accident. Plaintiff chose the method for securing the ladders to the truck. After securing one ladder with a bungee cord, plaintiff chose to remove the bungee cord in order to secure a second ladder. The Court found that plaintiff could have instead used one of the several bungee cords that were available in order to separately secure the second ladder.