David's Construction Accident Corner

This case is a mixed bag. The worker injured himself while climbing up a broken ladder attached to a building, while doing a project at the building. He was climbing the ladder to screw it the top rung which was missing a bolt.

This is an example of what I believe to be an unduly harsh interpretation of the Labor Law § 240(1) and Labor Law § 241(6) case law by the Appellate Division, Second Department.

Here, a worker climbed up a ladder that was fixed to a building’s wall and led to the roof in order to replace a bolt that was missing from the top rung. He grabbed onto the top rung while climbing and fell.

The court simply said he didn’t make out a strong enough case to win summary judgment on the gravity statute, Labor Law § 240(1). I think the court simply was bothered because the worker did something that was not too well-thought-out. But that’s the point in Labor Law 240 cases. A worker’s negligence can’t be the sole cause if another cause is the failure to provide proper protection. It was the obligation of his boss or the general contractor to have him use another device or to prevent him from using the fixed ladder. Once they failed in that obligation, Labor Law 240 was violated. And that’s where it should have ended, in my humble opinion.

On the non-gravity Labor Law § 241(6) theory, the court said there is a question if it was integral to the work and again denied summary judgment even though they said he made out a prima facie (on its face) violation. Again, I think they just felt the worker was foolish and didn’t want him to win summary judgment.

I have handled countless cases over the years where a worker used an A-frame ladder in the closed position because they didn’t have the room to open it, only to have the ladder slide out and cause the worker to suffer a serious injury. Since they don’t really have six-foot straight ladders available, workers, knowing that the boss wants the job done, close and lean the ladder on a wall. Far too often, their bosses are well aware of this dangerous situation.

The Gillett case made it clear that those workers don’t just get their cases thrown out of court. The worker has the right to present their case to a jury.

I should mention that there are also similar “closed A-frame” cases where the worker doesn’t even have to present the case to a jury. The court instead says, if that’s what happened you win. The case is either then settled or you present your case to a jury who only decides how much you get because you already won the case that they are at fault.

This is a useful case for lawyers because it covers a lot of topics, and it also explains a lot for workers to know. The case restated the law for the “scaffold law” or Labor Law 240(1) that when a worker is injured at a construction site because a part of their elevation safety device (ladder, scaffold, hoist, ropes, etc.) broke, failed, collapsed or moved, they are entitled to what we call summary judgment. That means the worker already wins the “who is legally responsible for their accident” part of their case without a trial, and would only have a trial for a jury to determine how much compensation they get – the money decision.

The rest of the case is somewhat technical. The case explains what happens when one of the participants/parties to the lawsuit makes or allows evidence to disappear. Here, it was the broken plank. The court can give them some very stiff penalties that help the other parties to the case, including the worker. The court also spoke about the rules and laws between the contractors. In these cases, the contractor, owners, and subcontractors try to put the blame on each other since they already lost and probably knew they were going to lose against the plaintiff, the injured worker.

We see the court here saying what we’ve explained before – that you can’t sue your employer. However, you can get workers’ compensation benefits from them. On a construction site, you can sue other parties like the owner and general contractor. They are responsible for the things done, not done, or not done safely, by any contractor, even if the owner or general contractor didn’t see it or know about it. It’s their responsibility to make sure the site is safe.

This case also shows how important good lawyering is. While I can’t be sure what the worker’s lawyers did there, I know they didn’t show the Court that the contractor should have known that it was likely that the roof that partially collapsed would do so; so no summary judgment. That doesn’t mean the worker lost, it only means that that worker will have to win the “who is responsible” part at a trial – unlike the MacDonnell case I mentioned above where the worker won because a scaffold collapsed. The difference is that the court presumes the contractors know safety devices like ladders and scaffolds can break, fall, or cause a worker to fall. Roofs shouldn’t just fall or collapse. But if the worker’s lawyer shows that the contractors should have known the roof could partially collapse, they would win summary judgment too.