The New York Appellate Division, Second Department handed down an interesting Labor Law § 240 (1) decision recently. In Wiski v Verizon N.Y., Inc., the accident concerned a falling object accident (see recent post discussing falling object case). The injured plaintiff fell from a scaffold while performing asbestos abatement work for his employer. While standing on the scaffold, the injured plaintiff was removing ducting from the ceiling. A section of the ducting bent downward and struck the scaffold, causing him to fall.
At a deposition, the injured plaintiff testified that he was provided with the scaffold and with a hoist to use for securing and gradually lowering the ducting segments. Notably, he was not using the hoist when the accident occurred.
The appeal concerned the trial court's denial of the plaintiffs' cross-motion for summary judgment on liability concerning a violation of Labor Law § 240 (1). The Second Department concluded that the plaintiff failed to meet their initial burden on summary judgment. The Court concluded that the injured plaintiff's deposition testimony raised a triable issue of fact as to whether the ducting posed an elevation-related risk that required securing for the purposes of the undertaking. The Court pointed out that the injured plaintiff testified that the ducting was light enough to be held up by his hands after being cut. Such an object is arguably different than the dolly involved in the accident at issue in Outar v City of New York.
Without much discussion about the sole proximate cause defense, the Second Department in Wiski stated, "[i]n any event, the injured plaintiff was provided with an enumerated safety device, the hoist, which he declined to use to secure the subject ducting prior to cutting it." Finally, the Court also stated that the plaintiffs failed to show by evidence in admissible form that the scaffold provided to the injured plaintiff was inadequate to protect him.
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