In Yost v. Quartararo, a roofer fell to the pavement from a balcony when the balcony's railing gave way, causing him to sustain serious personal injuries. At the time of the accident, the plaintiff was attempting to secure a tarp to the building's roof. The plaintiff's attorneys contended that he was protected by the Labor Law 240(1) because the balcony's railing was the equivalent of a scaffolding, and was inadequate. (For a fuller explanation of laws pertaining to personal injuries sustained at a worksite or construction site, please see "Construction Accident Liability Under New York Law.")

Interestingly, the Appellate Court upheld the lower court's judgment in plaintiff's favor, but did so on grounds that weren't raised by either the plaintiff or defendant in the lower court. While the appeals court categorically rejected plaintiff's assertion, finding that the balcony could not be deemed a "scaffolding" under the statute, the court also found that the balcony was an elevated worksite, as a result of which the defendants were required to furnish the plaintiff with one or more the statutorily specified safety devices (which they clearly failed to do).

In light of the clarity and apparent logic of the Appellate Division's decision, I can't help but wonder why the plaintiff's attorneys didn't raise this argument to begin with.

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