Plaintiff's Uncertainty on Causation Creates a Question of Fact in New York Labor Law § 240 (1) Case

Where a subcontractor's worker is injured by falling from a height at a construction site, strict liability may be imposed under New York Labor Law § 240 (1) on both the project owner and the general contractor if the worker was not provided with proper safety equipment. When liability under § 240 (1) is litigated, it is not uncommon for summary judgment to be awarded in favor of the injured worker.

In Bonczar v. American Multi-Cinema, Inc., case number 1170 CA 17-00732, 2018 NY Slip Op 00712, the injured plaintiff fell from a ladder while updating the fire alarm system during a movie theater renovation. The trial court granted summary judgment in favor of the plaintiff on his § 240 (1) liability motion.

On February 2, 2018, however, the Appellate Division, Fourth Department, reversed in a three-two decision. The majority noted particularly that the plaintiff, in his deposition testimony, admitted that he did not know why the ladder wobbled or shifted, and acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.

The dissent (in an opinion twice as long as the majority opinion) argued that the plaintiff had established his prima facie case on liability by presenting evidence that his ladder had wobbled or shifted, that it therefore did not provide the requisite fall protection, and that the failure to provide him with adequate protection was a proximate cause of his injuries. In the absence of any contrary evidence produced by the defendants as to the actual cause of his fall, the dissenters felt that his mere uncertainty as to whether he had checked the locking mechanism could not defeat the plaintiff's motion for judgment on liability (quoting Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 289 n 8 (2003) for the proposition that a plaintiff who falls from a ladder that "malfunction[s] for no apparent reason is entitled to 'a presumption that the ladder . . . was not good enough to afford proper protection'").

Bonczar, of course, was not precluded by the Fourth Department from proving at trial that his fall resulted from a defective ladder; the majority simply found that there was a genuine question of fact on this point, and that, accordingly, judgment as a matter of law was inappropriate. For defense strategy purposes, though, defeating a Labor Law plaintiff's motion for summary judgment on liability can provide the owner or general contractor with an unexpected bit of leverage in settlement negotiations. The majority Bonczar decision suggests that, where failure of a safety device is the issue, discovery sought from the plaintiff should focus on all facts demonstrating uncertainty as to whether the plaintiff used the device properly.

With that said, the history of motions like this one is weighted in favor of Labor Law plaintiffs, and against the strictly liable defendants. Given the close decision and the strength of the dissent, Barclay Damon LLP will continue to monitor whether this matter is addressed by the Court of Appeals and will report same.