Last year, just in time for the Holiday Season, we reported that Sections 200, 240(1), and 241(6) of New York’s Labor Law, which are commonly referred to as New York’s “Scaffold Law”, do not always result in automatic liability simply because there was an injury on the jobsite. While many cases are amenable to summary judgment in favor of an injured plaintiff (which leaves the trial to determine only how much—and not whether—that plaintiff gets paid), there we wrote about situations where a trial would be held on the issue of liability (a relative rarity in the context of a Scaffold Law claim) because there were questions as to whether the plaintiff was the sole proximate cause of his injuries. Here, just in time for this Holiday Season, we write to advise that a court, in Injai v Circle F 2243 Jackson (DE), LLC, also reminds us that unwitnessed accidents can provide a reason to permit contractors to challenge liability, and not just damages, at a trial.
Background
In February of 2019, Ronny Injai, a carpenter, was on a job site for the construction of an 11 story building in Long Island City. He was assigned to carry materials for the construction of concrete forms from one floor to another and build the required forms. He requested the assistance of another person from his supervisor, but no assistance was ever provided. Despite the lack of any assistance, Injai started to move these forms from the 8th floor to the 9th. During this process, according to Injai, the ladder he was using, which he claims was unsecured, began to wobble, and he fell and allegedly sustained injuries.
Injai started a lawsuit to recover for his injuries, alleging that the various defendants failed in their statutory duty to protect him from height-related hazards and he was injured as a result. In discovery, it was made clear that the accident was not witnessed by anyone, and the only version of events was the one alleged by Injai. Injai moved for summary judgment on the issue of liability, arguing that the defendants failed to provide adequate safety devices, and that the only issue to be tried was one of damages. The defendants opposed, pointing to: 1) Injai’s testimony that he was carrying 100+ pound loads up the ladder, and had carried between 20 and 25 loads up the ladder; and 2) an expert’s affidavit opining that if the ladder had been unsecured Injai would not have been able to have used it at all, and that Injai must have fallen because he was overburdened and simply lost his balance. Accordingly, the defendants argued, there was a question of fact as to how this unwitnessed accident actually occurred, and whether there was a violation of a statute.
Decision
The court denied Injai’s motion and, on appeal, the appellate court affirmed. In doing so, the court, citing well settled law, held that the mere fact of a fall from a ladder does not, in and of itself, establish a violation of the Scaffold Law, and that it is a plaintiff’s burden to establish that the ladder was defective or unsecured. After doing so, the court held that where, as here, a plaintiff is the sole witness to an accident and his credibility has been placed at issue—which occurred here when he testified that the ladder was unsecured after having used it while being overburdened between 20 and 25 times, and when the defendants provided expert testimony placing that version of events in doubt—that summary judgment is not appropriate.
Comment
As we wrote last year, the Scaffold Law is viewed as the bane of New York’s construction industry. Because of its absolute liability, the Scaffold Law does not permit the consideration of whether the plaintiff also had any comparative fault for his or her injuries, or how much effort the contractor put into safety, or otherwise preventing the accident in the first place. However, as the Injai Court reminds us, this does not preclude an owner or a contractor from proving that there was no violation of the Labor Law at all—which is made easier when a plaintiff’s version of events is the subject of a credibility challenge. Given the volume of people on a construction site, these situations will not happen very often, but when they do it hinders a plaintiff from having the usual “slam dunk” case for recovery. Also helping here was the expert testimony directly countering the plaintiff’s (uncorroborated) statement that the ladder was unsecured, stating that if the ladder was unsecured Injai would not have been able to make the 20 to 25 trips up and down he testified occurred before the accident.
While the Scaffold Law strikes fear into the hearts of contractors and owners (which is reflected in New York’s considerably higher liability insurance rates), all is not lost where contractors document their safety plans and procedures, and communicate them to employees and job site contractors—and do so on an ongoing basis. Similarly, when an accident occurs, thorough photographing and documenting of the accident and any item related to the accident is crucial; in Injai, the photographs of the ladder immediately after the accident supported the expert’s affidavit testimony that the ladder was not unsecured, which created the credibility issue requiring a trial of all issues (and not just the usual damages question).
If you would like more information regarding this topic please contact Thomas H. Welby at twelby@wbgllp.com or call (914) 428-2100
