SACS Appellate Group Obtains Reversal of Summary Judgment on Labor Law 240(1)
In Carlton v. City of New York, 161 A.D.3d 930, 930 (2d Dep’t 2018), the Appellate Division, Second Department reversed the grant of summary judgment to plaintiff on his Labor Law § 240(1) cause of action, demonstrating once again that the appellate courts are applying this strict liability statute more fairly and realistically than during the recent Chief Judge Lippman era. In short, we obtained a reversal of summary judgment on a Labor Law § 240(1) “falling object” case involving a flange that fell and struck a worker despite being secured by two “tack welds”. As many practitioners know, Labor Law § 240(1) imposes strict liability on defendants where plaintiffs are injured by a falling object due to the absence or failure of “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed”. The “other devices” language has bedeviled defendants over the years. Here, the Second Department declined to stretch the “other devices” language to encompass tack welds, which after all are not particularly similar to scaffolds, hoists, or the other enumerated safety devices. Because “tack welds do not constitute a safety device within the meaning of Labor Law § 240(1)”, strict liability did not apply. Rather, the presence of the tack welds, which ought to have sufficed to secure the flange, raised an issue of fact as to whether the enumerated safety devices “would have been necessary or even expected” under the circumstances. Accordingly, the Court found a triable issue as to whether Labor Law § 240(1) required defendants to supply a “hoisting or securing device” such as a sling to support the flange until ‘final’ welded (not just ‘tack’ welded) in place. As a result of the decision, at the upcoming trial, liability is fully in play and it will be for the jury to decide whether the Labor Law has been violated. The successful appeal was principally drafted by Tim Capowski, Rob Ortiz and John Watkins.
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