In Rodriguez v DRLD Dev., Corp., 2013 NY Slip Op 05548, The New York Appellate Division, First Department reversed the lower Court’s granting of summary judgment on her Labor Law § 240(1) claim holding that “it cannot be determined, on the extant record, whether plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by Labor Law § 240(1).” The plaintiff while working on a construction project tripped on a metal cable, dislodging a pile of sheetrock boards, which stood approximately eight feet high and were leaning against a wall, not in use. Plaintiff attempted to stop boards from falling with her hands and head, but she could not support their weight, and suffered injuries. This case illustrates the importance for a plaintiff to set forth the type of safety device that would have prevented the accident. Had this proof been offered the plaintiff would in all probability have won the motion since the Court stated as follows;
“The Supreme Court correctly held that section 240(1) applies to this case even though the sheetrock that fell upon plaintiff was located on the same first-floor level as plaintiff (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 ), and was not being hoisted or secured (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 98 AD3d 864, 865-866 [1st Dept 2012]). We find no inconsistency between plaintiff’s deposition testimony and her averment that at the time the sheetrock fell on her, it was leaning against the wall and resting atop blocks of wood approximately two feet high, a sufficient height differential to implicate § 240(1)’s protections (see Lelek v Verizon N.Y., Inc., 54 AD3d 583, 584 [1st Dept 2008]).” Fortunately, for the plaintiff the 240(1) claim was not dismissed.
Compare this to Hugo v Sarantakos, 2013 NY Slip Op 05512, Appellate Division, Second Department in which The Court dismissed the plaintiff’s 240(1) claim. According to The Court “…the plaintiff, while standing on the second-highest rung of a 24-foot extension ladder, which he owned and brought to the work site, lost his balance and fell to the ground, allegedly sustaining serious injuries. Prior to the accident, the ladder did not move or slip, and it remained in an upright position after the plaintiff fell off of it.” In dismissing The New York Labor Law Section 240(1) claim the Court opined;
“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'” (Probst v 11 W. 42 Realty Invs., LLC, _____ AD3d _____, 2013 NY Slip Op 03074, [2d Dept 2013], quoting McCarthy v Turner Constr., Inc., 17 NY3d 369, 374). ” To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'” (Gaspar v Pace Univ., 101 AD3d 1073, 1074, quoting Lopez-Dones v 601 W. Assoc., LLC, 98 AD3d 476, 479). “The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided” (Delahaye v Saint Anns School, 40 AD3d 679, 682; see Esteves-Rivas v W2001Z/15CPW Realty, LLC, 104 AD3d 802, 803-804; Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 461; Xidias v Morris Park Contr. Corp., 35 AD3d 850, 851). There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries (see Artoglou v Gene Scappy Realty Corp., 57 AD3d at 461). Where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach (see Gaspar v Pace Univ., 101 AD3d at 1074; Chin-Sue v City of New York, 83 AD3d 643, 644). To impose liability under such circumstances would make a defendant an insurer of the workplace, a result which the Legislature never intended in enacting Labor Law § 240(1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286; Molyneaux v City of New York, 28 AD3d 438, 439).”
A word to the wise; It is not enough for a plaintiff to show that something or someone fell. Proof must be offered as to the safety device that would have prevented something from falling or in the case of someone falling from a ladder, scaffold, etc. what was wrong with the device that caused it to fall.