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Construction Workers

Appellate Division Rules in Favor of Worker Hit by Falling Block

As a start for the New Year, we are proud to announce that, in a unanimous decision from the Appellate Division, First Department, they ruled that a laborer who was struck in the knees by a block that fell was entitled to summary judgment based on Labor Law 240. What brought the case to the attention of the appellate court was the fact that the block fell from the remaining part of the wall, directly above a few foot tall and wide opening he had just made with a sledgehammer and chipping gun to allow an HVAC duct to be placed through it. Plaintiff’s and defendant’s expert disagreed on the question of whether the opening should have been braced after it was made. The Court ruled that,

“Unlike in O’Brien, the experts here do not differ as to whether a safety device that was provided was adequate, but rather differ as to whether a safety device was required at all (see Zimmer v. Chemung County Performing Arts…).”

So, we see that the differing expert opinions do not necessarily require denial of a plaintiff’s summary judgment motion, based on O’Brien, where the issue is the need for a device in the first instance. Rather, the logic in Zimmer takes over. As stated by the O’Brien court:

Although the dissent places great weight on Zimmer v. Chemung County Performing Arts, the holding in that case was that “in light of the fact that no safety devices were provided at the worksite, it was error to submit to the jury for their resolution the conflicting expert opinion as to what as to what safety devices, if any,” should have been employed (65 NY2d 513, 523 [1985] [emphasis added]. By contrast, here the experts differ as to the adequacy of the device provided.”

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