Appellate Partner Dave Zegarelli Overturns The Grant of Labor Law §240(1) In The Appellate Division, First Dept

Labor Law § 240(1) imposes a non-delegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers that are subjected to certain elevation-related risks.  To recover under Labor Law § 240(1), the injured worker must establish: (i) he was engaged in a covered activity, i.e., erection, demolition, repairing, altering, painting, cleaning or pointing of a building structure; and (ii) he was injured as a direct result of not having adequate protection from elevation-related risks.

Here, plaintiff was seriously injured in a 13-foot fall from a height while painting an elevated billboard in a fenced-in work site.  Plaintiff was provided with a truck equipped with a cherry picker, a safety harness and lanyard, and two ladders (8-feet and 24-feet).  However, plaintiff asserted that, due to the presence of the concrete blocks and light fixtures in front of the billboard, and the fencing around the billboard, the four safety devices he had with him were inadequate, so he chose instead to use the blocks in front of the billboard as a work platform.  Plaintiff lost his balance as he reached up to loosen one of the straps that held the image to the billboard frame so he could paint underneath it.

Plaintiff maintained he could not paint from inside the cherry picker basket because he could not position basket close enough to the billboard to reach it, that he could not use his harness because he had nothing to “tie off” to, and that he could not use the ladders because of the configuration of the site.  Plaintiff also contended that the billboard was unsafe in that it lacked guardrails or a catwalk.  Plaintiff buttressed his case with a site safety expert who opined that he was not provided with proper fall protection in violation of Labor Law § 240(1) proximately causing this accident.

Based on these facts, the Supreme Court, New York County granted plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim, holding our client absolutely liable for plaintiff’s injuries.  Then, Dave Zegarelli became involved with the case when one of our insurance partners requested that he personally handle the appeal on their behalf.  He crafted a winning argument raising issues of fact on the “sole proximate cause” defense.  Mr. Zegarelli persuaded the Appellate Division that plaintiff was supplied with four safety devices and chose not to use any of them, electing instead to go straight to the concrete blocks, which were never intended to serve as a platform.  Additionally, the record included conflicting evidence regarding whether plaintiff was provided with adequate safety devices but failed to use them, raising triable issues of fact whether his conduct was the “sole proximate cause” of his injuries.  Accordingly, the First Department reversed the lower court on the law in a 3-2 split decision.  We expect plaintiff to take the case up to the highest court in New York, the Court of Appeals, where we will continue the “good fight” on this case.

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