Juan Carlos Guanopatin, an employee of Roth Metal Works, was performing the task of leveling pre-cast concrete planks as part of the construction of a seven-story building in Brooklyn. He was injured when a pre-cast concrete plank weighing approximately one ton fell from a jack being used to raise the plank, onto one of the plaintiff’s hands.
Guanopatin commenced an action pursuant to Labor Law §§ 200, 240(1), and 241(6), and for common-law negligence, against the owner of the premises, Flushing Acquisition Holdings, LLC, and the general contractor, HSD Construction, LLC. Guanopatin v. Flushing Acquisition Holdings, LLC
In his summary judgment motion concerning the Labor Law § 240(1) claims, Guanopatin asserted, among other things, that the single jack used to lift the concrete plank was not suitable to protect him from the elevation-related hazard, and that the plank should have been hoisted and/or secured while he was performing the task of leveling the planks. The Supreme Court granted the plaintiff’s motion. The defendants appealed.
The Appellate Division, Second Department upheld the lower court finding and agreed that Guanopatin established his prima facie entitlement to judgment as a matter of law by demonstrating that he was engaged in work within the ambit of the statute and that his injuries were proximately caused by “the absence or inadequacy of a safety device of the kind enumerated in the statute.”
The Second Department held that the defendants failed to raise a triable issue of fact as to whether the plaintiff’s conduct was the sole proximate cause of the accident. The defendants argued that Guanopatin ignored the directions of his foreman to stop working and also that he pushed the jack to its maximum level in contravention of the foreman’s instructions when the accident occurred. These sound like valid sole proximate cause defenses, however, the defendants’ submitted proof consisted of the written statement of the plaintiff’s employer based upon a post-accident investigation. The statement was nothing more than a letter, an unsworn statement, deemed to not be in admissible form. Therefore, the statement was insufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of the accident
The Second Department found that the same witness’ deposition testimony contained similar statements, which constituted hearsay inasmuch as the employer’s witness was merely recounting what he learned from interviewing the plaintiff’s foreman, who did not witness the accident.
Courts will accept hearsay statements in opposition to summary judgment motions, however hearsay alone “is not sufficient to defeat the motion.” (Feinberg v. Sanz, 115 A.D.3d 705, 707; see 111-38 Mgt. Corp. v. Benitez, 107 A.D.3d 862, 865; Sprotte v. Fahey, 95 A.D.3d 1103, 1104-1105.
Since the defendants failed to submit any other admissible evidence in opposition to the plaintiff’s motion, they failed to raise a triable issue of fact as to whether the plaintiff’s alleged failure to follow his foreman’s instructions was the sole proximate cause of his injuries. It was incumbent upon the defendants to demonstrate that the plaintiff caused the object to fall and no additional safety device would have protected him and to do so with admissible evidence.
This case is a reminder of the need to thoroughly investigate the accident and all possible defenses by tracking down witnesses and conducting interviews and non-party discovery. Perhaps a more thorough investigation may have revealed an occurrence witness that would have supported the defendants’ arguments with admissible proof. It can also be a reminder that some defenses have their limitations based upon the specific facts and circumstances and identifying losing arguments early could lead to an earlier, more favorable resolution of the case.
Thanks to Vincent Terrasi for his contribution.