New York, N.Y. (August 8, 2024) – In Josan v. City of New York, et al., New York Associate Jonathan A. Bartlett, a member of New York Partner Meghan A. Cavalieri's Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiffs' Labor Law §240(1) claim against the City of New York, the New York City School Construction Authority, and the New York City Department of Education.
The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on January 9, 2020, while in the scope of his employment as a forklift operator in connection with the construction/renovation of a school building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when a forklift he was operating in order to lift scaffold frame materials tipped over, causing him disabling injuries. The plaintiffs' counsel articulated an eight-figure initial settlement demand.
Labor Law §240(1) imposes absolute liability on a defendant where an injured worker engaged in the performance of covered construction work establishes that a safety device proved inadequate to shield him from elevation-related harm, and that the defendant's failure to provide an adequate safety device proximately caused the injuries alleged. Here, Jonathan worked extensively with the defendants' expert engineer and party and non-party witnesses, and referenced the plaintiff's own sworn testimony, in arguing that the forklift being operated by the plaintiff at the time of the accident was not only in good working order, but possessed all necessary, built-in safety protections. As such, the Supreme Court, Kings County determined that the record did not demonstrate that the defendants failed to provide an adequate safety device to the plaintiff, or that the injuries alleged by the plaintiff resulted from the lack of any such safety device.
Additionally, the Court agreed with Jonathan's arguments that the plaintiff was the sole proximate cause of his own alleged injuries, in his misuse of the forklift, his causing it to tip over, and his failure to avail himself of its built-in safety protections, once it began to tip. Moreover, the Court determined that the plaintiff was a recalcitrant worker, in that he failed to heed the warnings of his coworker, who warned him regarding his misuse of the forklift, immediately prior to the accident.
Both the sole proximate cause and recalcitrant worker defenses to Labor Law §240(1) liability pose a difficult challenge to defendants' counsel, and are seldom found by the New York Courts.
In granting the defendants summary judgment and dismissal of the plaintiffs' Labor Law §240(1) claim, the Court also denied the plaintiffs' cross-motion for summary judgment pursuant to §240(1). The case survives on one sole liability issue under Labor Law §241(6), premised on alleged violation of a subsection of a single Industrial Code.
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