First Department Clarifies When Safety Devices Are Considered "Readily" or "Easily" Available
August 20, 2009

On August 18, 2009, the Appellate Division, First Department, in the case of Cherry v. Time Warner, Inc., et al., in affirming the denial of summary judgment on Labor Law §240(1), clarified the showing necessary to establish that safety devices were "readily" or "easily" available for purposes of asserting a sole proximate cause defense. In this regard, 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."

In Cherry, Plaintiff was an employee of a subcontractor which was contracted to work between the third and eleventh floors of the 80 story building. Plaintiff was installing sheet rock to the ceiling of the third floor. In performing this task, Plaintiff was standing on a baker’s scaffold, which had guardrails on only two of its four sides. Plaintiff stepped off one of the unguarded ends of the scaffold and fell onto the concrete floor below, sustaining injuries.

Plaintiff commenced a Labor Law §240(1) action against the owner and general contractor. Plaintiff subsequently moved for summary judgment on the issue of liability. Plaintiff alleged that Defendants had violated their obligations under section 240(1) to provide him with an adequate safety device because they had failed to provide him with a scaffold with guardrails on all four sides of the platform. There was evidence in the record that plaintiff had observed scaffolds with proper guardrails on other floors. As such, the Defendants cross-moved for summary judgment on the grounds that Plaintiff was the sole proximate cause of his injuries. The Defendants argued that adequate safety devices had been provided as scaffolds with proper guardrails were available on the job site, which the plaintiff was aware of, but plaintiff opted not to use them. The trial court denied the respective motions for summary judgment finding that a triable issue of fact existed regarding whether safety guardrails were in place on the scaffold from which plaintiff fell, and if they were not in place, whether they were made readily available on site for the plaintiff’s use.

The Appellate Division, with one justice dissenting, affirmed the order of the lower court and denied the competing motions for summary judgment. In determining whether Plaintiff was the sole proximate cause of his injuries, the Court considered whether the owner and general contractor "furnished" adequate safety devices for the worker’s use on the work site as required under Labor Law §240(1). The Court held that when adequate safety devices are not "furnished" for workers, owners and contractors may still satisfy the statutory requirement so long as adequate safety devices were "readily available," such that a worker’s "normal and logical response should have been to go get one." The Court held that this situation is limited to circumstances where "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." While the Court stated that it is "highly unlikely" that the presence of a safety device (scaffold with proper guardrails) on a different floor would qualify as being readily available, the Court did not reach the issue as it found conflicting testimony as to the location of the scaffolds with guardrails on the day of the accident created a triable issue of fact, thus precluding summary judgment.

The lone dissenting Justice argued for a more lax statutory interpretation of Labor Law §240(1)’s requirement for owners and contractors to provide adequate safety devices to workers. The dissent suggested that a greater obligation should be placed on the worker to search for adequate safety devices that he or she knows exist. Thus, the dissent proposed that the proper inquiry should focus on whether the injured worker was aware that adequate safety devices were available because to limit the worker’s obligations only to circumstances where the worker knows the "exact location" of safety devices, coupled with an established prior "practice of obtaining such devices" "dilutes" the statutory goal of promoting worker safety.

A copy of the First Department decision is available. If you have any questions, please do not hesitate to contact me, Robert M. Leff.