In Barreto v. Metropolitan Transportation Authority, the First Department upheld the lower court’s decision that granted the defendants’ summary judgment motions and denied the plaintiff’s cross-motion for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims.

Barreto was performing asbestos removal work below ground.  In order to do this work, he and his co-workers had constructed a wooden enclosure around the manhole cover that they then covered with plastic sheeting to protect the surroundings from asbestos contamination.  An opening was left in the enclosure to provide access to the manhole.  Inspectors from the Metropolitan Transportation Authority checked to ensure that the electricity had been turned off and an outside safety consultant monitored the below ground air quality.  Once approval was given permission, Barreto’s co-workers removed the cover and placed it outside the enclosure.  They then sealed the opening and descended through the manhole.  At the end of the shift, the workers removed their equipment from below ground, exited the manhole, replaced its cover and dismantled the containment enclosure surrounding the manhole.

Barreto was injured at the end of his shift, after climbing out of the manhole.  Instead of covering the manhole as he had been directed to, Barreto and his co-workers began dismantling the containment enclosure.  In the process of doing so, Barreto fell into the hole.  During discovery, Barreto conceded that earlier that day his supervisor had told him to cover the manhole before breaking down the enclosure.

The First Department noted that Barreto’s own actions were the sole proximate cause of his accident.  Barreto was provided with the perfect safety device — the manhole cover.  Yet, he chose not to use it and disregarded his supervisor’s explicit instructions.  Moreover, the court noted that since Barreto had just emerged from the manhole, he should have known that it was still open and should have avoided it.

In an attempt to defeat the defendants’ summary judgment motions, Barreto argued that a guardrail should have been placed around the manhole, but the court rejected this and also rejected Barreto’s argument that safety netting or a harness should have been provided.  Simply put, the manhole cover itself was sufficient.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at .