In THOME v. BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, 4th Dept. July 8, 2011, 2011 N.Y. Slip 5884, The Court denied the plaintiff construction worker’s motion for summary judgment. Plaintiff was standing on a scissor lift and, when he repositioned the scissor lift to perform his work, one of its wheels entered a hole in the floor and the scissor lift tipped over, causing plaintiff to fall and sustain injury. In denying the motion the Court held;
“We agree, however, with the further contention of defendants that they raised a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted evidence that plaintiff was aware that holes had been cut into the concrete floor of the building in which he was working and that, on the morning of his accident, plaintiff had been specifically directed not to operate the scissor lift in the area where the holes had been cut. Further, defendants submitted evidence that plaintiff drove the raised lift into that area while looking at the ceiling rather than where the lift was going. Consequently, “[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries” (Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439).”
In a dissent Justice Peradotto voted to affirm the lower court’s granting of summary judgment stating;
“Contrary to the conclusion of the majority, however, I conclude that defendants failed to raise a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted the deposition testimony of the foreman on the project, who testified that, on the morning of the accident, he told plaintiff “to work in the center of the building” and away from the holes, which were located on the “sides” of the building. According to the foreman, plaintiff’s accident occurred outside the area that the foreman defined as the “center” of the building, although he could not recall how far away from that area plaintiff was at the time of the accident. In viewing photographs of the work site, the foreman could not identify any “landmark” or other object demarcating the area he defined as the center of the building. Notably, plaintiff’s employer was hired to install struts throughout the entire building, including the area where plaintiff’s accident occurred, and the task required plaintiff to move the scissor lift around the building. In any event, even assuming, arguendo, that plaintiff was “specifically directed not to operate the scissor lift in the area where the holes had been cut,” as the majority states, defendants’ “nondelegable duty under [Labor Law §] 240 (1) is not met merely by providing safety instructions . . ., but by furnishing, placing and operating [safety] devices so as to give [plaintiff] proper protection” (Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086 [internal quotation marks omitted] [emphasis added]; see Haystrand v County of Ontario, 207 AD2d 978). Here, “the fact that the scissor lift tipped establishes that it was not so ‘placed . . . as to give proper protection’ to plaintiff” (Ward, 13 AD3d 1098, quoting § 240 ). Thus, inasmuch as plaintiff established that the accident was caused, at least in part, by a statutory violation, his actions cannot be the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106).”
The New York Construction Accident Attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.