Although Labor Law Section 240 was designed to protect workers, making owners and general contractors strictly liable for height-related workplace safety violations, over the years the trial of those cases has become fraught with difficulty. While originally written by the Legislature to protect workers in dangerous occupations at all costseven from themselvesit has instead become a statute giving rise to the recalcitrant worker/sole proximate cause defense, allowing for many more defense verdicts. While Labor Law cases still provide a strong basis for statutory liability, they must be tried more artfully and carefully than ever before.
Let us take the following fact pattern, based upon an actual Appellate Division decision, where a small business owner is hired by the general contractor to paint a commercial building and falls from the A-frame ladder that he brought to the worksite himself. To make matters worse, he falls because the back legs of the ladder he placed sink into the grass that became wet from his power washing, and an employee of the building’s owner says that the plaintiff was intoxicated at the time, although neither the police report nor the hospital records bear that out. In addition, the general contractor’s safety foreman, who had worked with the plaintiff on prior occasions, allowed him to begin work after hours, after all the other contractors, including the safety foreman, had left for the day.
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