In Pitts v. Bell Constructors, Inc.,et.al., 2011 NY Slip Op 1220 decided February 18, 2011 The New York Appellate Division, 4th Department reversed the lower court’s granting summary judgment to the defendant on plaintiffs’ Labor Law Section 240(1) cause of action and granted plaintiffs’ cross motion on their Section 240(1) claim.
The plaintiff was injured when he fell from a column form in a trench on which he had been standing into the trench. The Court pointed out that while a fall into a trench from the ground on either side is not covered by 240(1) this was not the case in this accident holding as follows;
“Plaintiffs established theirentitlement to judgment as a matter of law by demonstrating that” plaintiff was not furnished with the requisite safety devices andthat the absence of [such] safety devices was a proximate cause of his injuries” (Williams v City of Niagara Falls, 43 AD3d 1426, 1427).Although generally a fall into a trench from the ground on either side is not covered by the statute (see e.g., Bradshaw v National Structures, 249 AD2d 921; Williams v White Haven Mem. Park, 227 AD2d 923), where, as here, a plaintiff is working or walking over a plank or similar support suspended over a trench and falls into it, the statute applies (see Wild v Marrano/Marc Equity Corp., 75 AD3d 1099).”