An injured worker’s New York Labor Law claim can move forward after an appeals court found that there were triable issues of fact regarding whether the worker was the sole cause of the incident.
The Appellate Division, Fourth Department found that a lower court erred when it granted summary judgment and dismissed the construction worker’s Labor Law claim.
Fall PPE was used as trusses were being attached
Joel Verdugo was a carpenter installing roof trusses on a building as part of a commercial construction project. The roof trusses were raised up to Verdugo two at a time by a crane. He had to secure the trusses to the building’s frame while standing about 14 feet above the ground.
Verdugo was wearing fall PPE with a 4-foot lanyard. He was injured after the crane’s cable became entangled with one of the unsecured trusses Verdugo was standing on. This caused the truss and Verdugo to fall to the ground.
The Nov. 24, 2021 Labor Law claim against the project’s owners and contractors was dismissed by a lower court. That court granted summary judgment to Hinsdale Road Group, CBD Construction and Fox Building Group on the grounds that Verdugo was the sole proximate cause of his injuries.
Companies didn’t meet their burden of proof
However, the Appellate Division, Fourth Department overturned that decision, finding that Hinsdale, CBD and Fox failed to provide enough evidence that Verdugo was the cause of the incident.
To prove that a worker caused an injury incident, the defendants must show that:
- they provided adequate safety devices that were available to the worker
- the worker knew the safety devices were available and were expected to use them
- the worker chose not to use the provided safety devices for no good reason, and
- the worker wouldn’t have been injured if they’d used the safety devices.
In these cases, the appeals court said, “It is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not constitute a refusal to use available, safe and appropriate equipment.”
The court further explained that a worker’s “decision to employ one method of performing a necessary task, even if a safer method existed, constitutes nothing more than comparative fault that is not a defense under the statute.”
Conflicting testimony means further proceedings needed
As evidence, the group of defendants offered testimony from the project foreman and another carpenter who both testified that Verdugo was instructed on the correct way to use his fall PPE. The foreman also stated that Verdugo had been corrected when he previously used the PPE incorrectly.
The foreman and the crane operator testified that they didn’t observe Verdugo using his PPE incorrectly on the day of the incident.
Verdugo claimed that he didn’t receive any specific training on how to use the PPE or instructions on how to remove the crane cable from the trusses. He explained that he used his regular method for installing trusses on the day of the incident, which involved him tying off to unsecured trusses. In his opinion, this was faster than attaching only to secured trusses and just as safe if the unsecured truss was held in place by the crane.
Further, Verdugo testified that another carpenter detached the crane cable from the truss and then gave the signal for the crane operator to raise the cable out of the way. That occurred while Verdugo was either attached to, or in the process of attaching his lanyard to, the unsecured truss that he thought was still connected to the crane.
All of this evidence raised triable issues of fact on whether an adequate safety device was readily available to Verdugo that he knew he was expected to use but chose not to, according to the appeals court.
