Plaintiff’s differing accounts of how his accident occurred may create an issue of fact as to whether a safety device was adequate under Labor Law § 240(1).

In Militello v. Landsman Dev. Corp., the plaintiff was injured while working on a scaffold using a screw gun to hang drywall when he pushed forward on the wall to apply a screw and the scaffold “skidded forward” toward the wall.  Plaintiff lost his balance, fell backwards onto a riser of the scaffold causing the riser to impale him through his left buttocks.  Plaintiff moved for partial summary judgment on Labor Law 240(1) and defendant cross-moved for summary judgment seeking to dismiss plaintiff’s complaint.

The trial court granted plaintiff’s motion for summary judgment on Labor Law 240(1) and denied defendants cross-motion to dismiss the 240(1) claim.  However, the Fourth Department reversed the trial court’s decision and denied plaintiff’s motion for partial summary judgment on Labor Law 240(1) finding that plaintiff’s own submissions raised triable issues of fact with respect to whether the scaffold provided plaintiff with proper protection and whether plaintiff’s failure to lock the wheels under the scaffold was the sole proximate cause of his accident.  The Fourth Department emphasized that although plaintiff responded to interrogatories stating that the scaffold “suddenly and without warning” skidded, “his coworker testified that plaintiff told him after the accident that he was moving the scaffold before he lost his balance and fell on the riser.”  Therefore, the Fourth Department found that plaintiff’s divergent accounts of how his accident occurred created questions off fact as to the adequacy of the protective device under Labor Law 240(1) and as to plaintiff’s credibility, thereby precluding summary judgment on plaintiff’s Labor Law claims.

As such, it is critical to obtain statements or testimony from all witnesses immediately following an accident, since plaintiff’s own, contradictory accounts may create an issue of fact as to the applicability of Labor Law 240(1).

Thanks to Alicia Sklan for her contribution to this post.