New York Personal Injury Attorneys Blog

In a must read case The New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., et al., decided October 25, 2011, 2011 NY Slip Op 7477, held that;

“Some New York courts have interpreted our decision in Misseritti v Mark IV Constr. Co. (86 NY2d 487 [1995]) to preclude recovery under Labor Law § 240 (1) where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. We reject that interpretation and hold that such a circumstance does not categorically bar the worker from recovery under section 240 (1). However, in this case, an issue of fact exists as to whether the worker’s injury resulted from the lack of a statutorily prescribed protective device.”

The Court went on to explain Misseritti;

In a 3-2 decision The New York Appellate Division, 3d Department, in GROVE v. CORNELL UNIVERSITY et al., 75 A.D.3d 718; 904 N.Y.S.2d 559; 2010, denied plaintiff’s motion for summary judgment on his 2401(1) claim while granting defendants’ cross motion dismissing the claim holding that plaintiff’s own negligent conduct was, as a matter of law, the sole proximate cause of his injuries. The facts as set forth by the majority were;

“Defendant Cornell University hired defendant Skanska USA Building, Inc. as the general contractor to construct a building on its campus. Skanska subcontracted the window work to Clayton B. Obersheimer, Inc., which employed plaintiff as a glazier. Plaintiff and a coworker, William Sobel, were performing work installing rubber membranes and metal flashing on the second story windows of the building. To reach the windows, plaintiff and Sobel utilized a mechanical telescoping boom lift, as they had done previously. Attached to the boom lift was a metal basket in which plaintiff, Sobel, their tools and materials were situated. Three of the four sides of the basket were enclosed by permanent metal rails. The fourth side was enclosed by a metal gate that opened into the basket to allow for ingress and egress of the workers. The gate was designed with a spring-loaded hinge so as to automatically swing the gate to a closed position when not in use. Plaintiff and Sobel were also provided with safety harnesses and lanyards that were to be attached to the basket to prevent them from falling out of the basket while it was in the raised position. Following a work break and the retrieval of additional materials, plaintiff and Sobel reentered the lift basket and plaintiff began operating the lift, raising it to the second floor. Sobel noticed that plaintiff had not attached the lanyard on his harness to the basket and reminded him to do so. Sobel then began work on a window and, within moments, turned around and saw that plaintiff was gone and the gate was in the open position. Plaintiff fell at least 30 feet, landed on a narrow slab of concrete below and suffered significant injuries”

The majority found that the fact that the spring-loaded hinge was not operating properly did not render the gate defective and that if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket. The dissent argued based on BLAKE and DUDA, that once a violation of 240(1) is shown a plaintiff’s conduct can’t be held as a matter of law to be the sole proximate cause of his accident, stating;