No Summary Judgment Under Scaffold Law

Saturday, October 21, 2006 | 0

Edited by Lawrence N. Rogak

Berenson v. Jericho Water Dist. et al. 2006 NY Slip Op 07133 Decided on Oct. 3, 2006, Appellate Division, Second Department, Index no. 2004-07037

While working at a construction site, the plaintiff fell from a scaffold and sustained injuries. In denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability under Labor Law Section 240(1), against the defendant third-party plaintiff, Jericho Water District (JWD), the owner of the site, and the defendant third-party defendant, Sidney B. Bowne & Son, LLP, the engineering firm at the site, the Supreme Court determined that there was a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of his injuries.

The Appellate Division held that the plaintiff satisfied his prima facie burden of demonstrating his entitlement to judgment as a matter of law. However, in opposition, the defendants raised a triable issue of fact as to whether his conduct was the sole proximate cause of the accident.

Evidence was proffered in opposition to the motion suggesting that the plaintiff, or laborers under his supervision, placed an inadequate wooden plank (i.e., a "joist") on the scaffold causing it to collapse.

"When a plaintiff handles a scaffold in such a manner as to create the condition causing its collapse, his or her conduct is the sole proximate cause of the accident (see Storms v Dominican Coll. of Blauvelt, 308 AD2d 575, 576; Hefferenan v. Bais Corp., 294 AD2d 401, 402-403; Styer v. Vita Constr., 174 AD2d 662, 663)."

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.