Issues surrounding Labor Law §240(1) continue to be hotly litigated in New York’s appellate courts. In reviewing recent §240(1) appellate decisions, it becomes clear that while some trends are discernible, much ambiguity remains. This article focuses on a number of 2011 appellate cases that involved whether an unexpected mechanical failure or worker negligence can be a valid §240(1) defense and explored the dynamic sole proximate cause and recalcitrant worker defenses. For practitioners representing plaintiffs or defendants in construction accident cases, understanding these decisions is necessary to developing successful case theories through discovery and crafting persuasive arguments in motion and trial practice.
Worker Negligence
Harris v. City of New York1 involved an iron worker injured while assisting in the removal of a massive concrete slab from the road deck of the Macombs Dam Bridge, which spans the Harlem River. While a crane attempted to lift a slab, which weighed one ton, one end of the slab remained stuck to the bridge. To free the slab, plaintiff’s foreman directed him to wedge a piece of four-by-four lumber where the slab remained attached, and had the crane lower the slab to place pressure on the wedge. After several unsuccessful attempts, the plaintiff was then instructed to wedge a six-to-eight foot long piece of lumber where the slab remained attached, and stand on the other end of the lumber to stabilize it while the slab was lowered again. This placed the plaintiff three-to-four feet above ground level. The plaintiff then motioned for the crane operator to lower the slab slowly, but it descended quickly instead, causing the lumber on which plaintiff stood to shatter and throwing him to the ground.
