In KARCZ v. KLEWIN BUILDING COMPANY, INC.,et. al., 4th Department, June 10, 2011, The Court affirmed summary judgment for the plaintiff on his 240(1) claim. The plaintiff had lifted a truss overhead onto the aerial platform of a scissor lift. The truss fell on him causing him to suffer injury. In affirming The Court held;
“The truss fell and struck plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240 (1) (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072; Ullman v Musall, 306 AD2d 813). Thus, “the harm [to plaintiff] flow[ed] directly from the application of the force of gravity” (Runner v NewYork Stock Exch., Inc., 13 NY3d 599, 604). We reject defendants’contention that plaintiff’s actions were the sole proximate cause of the accident. Rather, those actions, insofar as plaintiff may have moved toward the falling truss in an attempt to prevent it fromfalling, raise “at most, an issue of comparative negligence,” which is not an available defense under section 240 (1) (Dean v City of Utica,75 AD3d 1130, 1131).”
For those of you in The 4th Department The Court held that under the circumstances of this case the court rejected defendants’ contention that Labor Law vicarious liability provisions did not apply because plaintiff sustained the injury on an Indian reservation, i.e., that of the Seneca Nation.