This is a strange case.

In Tapia v. Mario Genovesi & Sons, Inc., the plaintiff was injured at a New York construction site when the makeshift scaffold that he was working on collapsed. The interesting aspect to this case is that this was no o rdinary scaffold; to the contrary, since he needed to use a scaffold to complete his work, and there was no scaffold at the worksite, his employer provided him with both materials and specific instructions on how to put together the scaffold. After doing so - but before using it - the plaintiff showed the completed scaffold to his boss, who apparently approved of its construction.

Not surprisingly, shortly after plaintiff began using the scaffold, it collapsed.

In its April 13 order reversing that part of the lower court's order that denied his motion seeking summary judgment based on a violation of New York Labor Law §240(1) , New York's Appellate Division, Second Department stated as follows:

"Since the scaffold collapsed, the plaintiff established ...  that he was not provided with an adequate safety device to do his work, as required by Labor Law §240(1), and that this statutory violation was a proximate cause of his injury (see Dos Santos v State of New York, 300 AD2d 434; Pineda v Kechek Realty Corp., 285 AD2d 496, 497)."

Reading between the lines of this decision, it appears that the defendants had argued in the lower court that the plaintiff should be barred from recovering because he erected the scaffold that collapsed, and therefore, was solely at fault for his own accident.

But, in my view, this argument is terribly flawed on policy grounds: simply put, if defendants' argument were allowed to succeed, they would be effectively discouraged from providing their employee construction workers with adequate safety devices at work sites, instead urging their employees to fashion their own protective equipment - a result that is directly at odds with the stated purpose for Labor Law §240(1).

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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