A New York Construction Accident Lawyer Who Represents Injured Workers Tracking Developments in Construction Accident Law.

The protections afforded to construction workers by Labor Law 240(1), known as the scaffold law, just seem to be getting weaker and weaker. At least, that’s what’s happening the more often the Appellate Division interprets it.

In Cherry v. Time Warner, Inc., 885 N.Y.S.2d 28 (1st Dept. Aug. 18, 2009), the Appellate Division, First Department, thoroughly analyzed the “normal and logical response” concept that has been evolving in the sphere of section 240(1) jurisprudence.  The court held that:

the requirement of a worker’s ‘normal and logical response’ to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so.

The import of this decision: if a defendant can show that a proper safety device was present in a known location and the worker did not obtain it, it is not liable.

In the case, the worker was stationed on top of a scaffold without guardrails on two of its four sides and fell eight feet to the floor.  The worker testified at deposition that he did not see any scaffolds with guardrails on the date of his accident, and while he did say that he had seen scaffolds with guardrails on the floor he was working on and on other floors before the date of his accident, it was not established that one was located on his floor when he was injured.

The court thus found that a question of fact existed that precluded summary judgment in favor of the worker.

The court did indicate that the worker would not necessarily be required to search for scaffolds on different floors.  Nevertheless, this decision shifts the burden for providing appropriate safety devices onto workers, rather than owners and contractors.  Surely, it will be cited by defendants in Labor Law cases seeking to defeat summary judgment.

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