Recently, the Appellate Division, First Department, in York v Tappan Zee Constructors, LLC, 2024 NY Slip Op 00826, reversed the lower court and granted summary judgment to the plaintiff under Labor Law Section 240, where the plaintiff was injured when he attempted to cross from one barge to another at the Tappan Zee Bridge construction site without a gangway, and slipped on an alleged icy condition. The plaintiff almost fell into the two-to-three-foot gap between the barges into the water 8 to 12 feet below but was able to grab onto another worker walking in front of him, who then pulled him onto the barge. 

The lower court had initially denied the plaintiff's motion for summary judgment on his cause of action under the statute and granted the motion of the defendants seeking to dismiss the Labor Law Section 240 claim. 

The Appellate Division reversed, concluding that the plaintiff had established entitlement to judgment as a matter of law as to liability in his Labor Law § 240(1) cause of action, in effect based on the failure of the defendants to provide a gangway between the two barges. Moreover, they found a violation of the statute, as a matter of law, even though the plaintiff never actually fell into the water below. Rather, he slipped on ice attempting to cross the two barges. 

But the lack of a fall was of no import to the Appellate Division. Rather, the crucial fact was that the plaintiff's injury arose from the plaintiff struggling to avoid the elevation-related risk of falling into the water. That elevation-related risk, under the statute, required an enumerated safety device, so as to “afford proper protection” to the plaintiff. Here, there was no such device, i.e. the gangway. In addition, the defendant's site safety plan itself required a gangway to be in place. 

These facts were sufficient for the plaintiff to establish as a matter of law that his injuries arose from the failure of the defendants to provide an enumerated safety device under the statute. 

The decision highlights many of the 240 practice points that must be addressed in a case involving injuries, even tangentially related to work from a height. Here, it was not enough that the plaintiff had not fallen into the water below. His injuries, as alleged, were proximately caused by a failure to provide the gangway. Put another way, he was allegedly injured when he struggled to prevent himself from falling into the water some 8 to 12 feet below. Ostensibly, if there had been a gangway, he would not have been put in that scenario, and he would not have been injured. 

Thus, as always, the analysis must include attention to not just the incident: did the worker fall from a height; did something fall on him; but to the injuries and how they arose. If the injuries were proximately caused by the failure or absence of an enumerated safety device, liability under the statute is likely. 

Final takeaway: the decision also addresses the sole proximate cause defense and highlights how precise and difficult it can be to successfully invoke it. Evidence that the plaintiff may have acted negligently in some sense and that negligence was a proximate cause of the injury will be insufficient to establish the sole proximate cause defense. What is required is evidence that an enumerated safety device was available to the plaintiff and that the plaintiff unreasonably chose not to use it. In any case, the plaintiff's own comparative fault is inadmissible under the statute.