In DeRose v. Bloomingdale’s Inc., the Appellate Division, First Department held that plaintiff was entitled to partial summary judgment on liability on his Labor Law § 240(1) claim.
While this case is but one data point in the ocean of Labor Law § 240(1) case law, it underscores the important point that a worker should not pay the penalty for his/her supervisor’s direction not to use an adequate safety device. In sum:
Because plaintiff’s supervisor explicitly directed him not to use an otherwise available Baker scaffold [which, according to plaintiff’s affidavit, is a scaffold with locking wheels and a height-adjustable platform that is approximately two feet in width and six feet in length], and defendant does not dispute that a Baker scaffold would have been the adequate device for plaintiff to engage in the required demolition work, plaintiff is entitled to partial summary judgment on defendant’s liability where he used an inadequate A-frame ladder and was injured in a resulting fall.
Plaintiff is a carpenter who sustained injuries while working on a renovation project in defendant’s Manhattan store. Defendant contracted with RP Brennan General Contractors (RP), a third-party defendant who employed plaintiff, to conduct renovation and demolition work. On the day of the accident, Gerry Cole, plaintiff’s supervisor who was also employed by RP, instructed him to assist with demolition work in a different section of the store from where he had been working. Cole told plaintiff to dismantle a temporary wall that had been erected to block the demolition work from the view of defendant’s customers.
Plaintiff began walking toward the back of the store to fetch a Baker scaffold, which he determined was the proper device to stand upon while dismantling the wall. However, Cole reprimanded plaintiff and directed him to use a ladder instead. Specifically, Cole told plaintiff that he could not “roll the f**** (expletive) scaffold through the store with customers” and commanded him to “[go] work off the f**** (expletive) ladders” that were already in the section being demolished. Because he did not want to disobey his supervisor’s orders or defendant’s policy prohibiting workers from moving equipment around the store while customers were present, plaintiff did not obtain the Baker scaffold.
When plaintiff arrived in the demolition section of the store, he saw three ladders, two of which were fiberglass A-frame ladders that were already in use by other workers. The only other ladder available was a “rickety,” old, wooden A-frame ladder. Nevertheless, because plaintiff had been instructed to complete the demolition work “ASAP,” he used the wooden ladder. After working with that ladder for approximately one hour, plaintiff “began dismantling the top support beam of the wall.” He attempted to place the ladder securely on the concrete floor, despite the fact that the floor was uneven because it had recently been jackhammered. While plaintiff stood on the ladder, with his feet approximately four feet from the ground, he swung his hammer. Unfortunately, after the hammer struck, the ladder “first shifted and wobbled, and then kicked out,” causing plaintiff to fall to the ground. As a result of the fall, plaintiff suffered fractures to his face and wrist. (Emphasis added)
The court rejected defendant’s reliance on the “sole proximate cause” defense, i.e., that plaintiff improperly selected a bad ladder and misused the one he picked::
Defendant does not dispute plaintiff’s assertions that a Baker scaffold would have been the adequate safety device for the demolition work and that plaintiff was not provided with one. When plaintiff attempted to fetch the Baker scaffold from the back of defendant’s store, his supervisor stopped him and commanded him to use the ladders in the section of the store that was being demolished. Defendant makes much of the issues concerning which ladder plaintiff used and the care with which he used the ladder, but that argument obfuscates the real issue in this case: plaintiff was not provided with the single device that would have enabled him to perform the work safely. The relevant consideration is defendant’s failure to provide plaintiff with the Baker scaffold, rather than which of the three inadequate A-frame ladders plaintiff ultimately used. As plaintiff was not provided with an adequate safety device, defendant cannot avail itself of the sole proximate cause defense.
In addition, it rejected defendant’s argument “that plaintiff should have fetched the Baker scaffold (despite his supervisor’s contrary instruction) or waited for the fiberglass ladders to become available”, reasoning that
plaintiff in this case initially exhibited the “normal and logical response . . . to go get” the adequate safety device when he attempted to fetch the Baker scaffold, but he was rebuffed by his supervisor. That plaintiff’s supervisor explicitly directed him not to use the scaffold, citing defendant’s policy against rolling equipment through the store while customers were present, rendered the scaffold essentially unavailable to plaintiff. There is no practical difference between what happened here — where a supervisor directs an employee to not use an otherwise available safety device — and a situation where a scaffold simply was not present at the worksite.
The Labor Law, recognizing the realities of construction and demolition work, does not require a worker to demand an adequate safety device by challenging his or her supervisor’s instructions and withstanding hostile behavior. To place that burden on employees would effectively eviscerate the protections that the legislature put in place. Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work. … When faced with an employer’s instruction to use an inadequate device, many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods. Labor Law § 240(1) speaks for those workers and, through the statute, the legislature has made clear that the provision of adequate safety devices at worksites is imperative and that worker safety depends on absolute liability for contractors and owners who fail to furnish such devices. (Emphasis added.)
The court noted that it reached the merits of the case, notwithstanding that plaintiff’s motion was premature.