Wednesday, January 18, 2017

Summary judgment on a Labor Law 240(1) claim.

The Appellate Division reversed the order denying plaintiff's motion for partial summary judgment on liability, and granted the motion in this action to recover for personal injuries allegedly sustained when plaintiff fell from a ladder at defendant-church while performing electrical work.

Plaintiff testified that as he descended from the attic on a wooden ladder, which was permanently affixed to the wall, the ladder shifted. Specifically, plaintiff testified that as he attempted to descend the ladder, he reached for it and placed his right hand and foot on it, but it moved away from him, causing him to fall headfirst 12 to 17 feet to the choir loft below. He further testified that he did not have anything in his hands as he was coming down the ladder. According to plaintiff, the ladder was attached to the wall in a jerry-rigged fashion, connected at the top to a joist beam with grey metal wires. The ladder went up the wall of the choir loft/mezzanine to an access point for the attic of the church. The church's pastor testified that he guessed the ladder had been there since the church had been built 150 years ago.

By testifying that as he descended the ladder it shifted, causing his fall, plaintiff established a prima facie violation of the statute.  Defendant's affidavit averring that plaintiff had told his nonparty-employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff's testimony that the ladder shifted and failed to create triable issues of fact that plaintiff's actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

The Appellate Division rejected defendant's contention that there are issues of fact as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff's employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points.  In addition, defendant does not explain how a rope that was used to hoist materials to the attic where plaintiff was working could be used as a safety device.  Plaintiff's decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it.

Case:  Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., NY Slip Op 00239 (1st Dep't January 12, 2017)

Here is the decision.

Tomorrow's issue:  A traffic violation and negligence per se.