The Appellate Division, First Department reverses the Lower Court and finds for plaintiff under Labor Law 240 (1) where plaintiff was neither the sole proximate cause of accident or a recalcitrant worker.
November 7, 2016 Posted By Lance E. Benowitz Construction Claims
In Saavedra v. 89 Park Avenue, LLC., the Appellate Division, First Department recently reversed the Trial Court’s denial of plaintiff’s Labor Law 240(1) motion for partial-summary judgment, holding that the lower court erred in finding plaintiff was the proximate cause of his injuries when he fell as he was descending a ladder where plaintiff had a choice of using a six or eight foot ladder. The court found that Plaintiff’s use of the six foot ladder that required him to stand on the top step, instead of the eight foot ladder, did not make him the sole proximate cause of his injuries since the eight foot ladder could not be opened in the work space due to construction debris. The affidavit from defendant’s superintendent that there was sufficient space was found to be inconsistent with his testimony so as to create a feigned factual issue not to be considered by the court.
In addition, plaintiff was found not to be a recalcitrant worker. Though plaintiff was told by a site safety manager that he should not work in the debris laden area, since she did not definitively direct plaintiff to stop work, as she had no such authority to do so, and this was a well-known, ongoing safety issue, there was no reason for plaintiff to believe that on the day of the accident, the site safety manager was advising him to stop working.
Not only is it very difficult to prove plaintiff was the sole proximate cause of his or her accident, particularly in the First Department, it may be more difficulty to find plaintiff was a recalcitrant worker. Plaintiff knowing he or she should not work in the area is not enough as they need to be specifically directed to stop working, which is rarely done at the jobsite.