7/9/2009Following the trend articulated in "Construction Site Accidents: Why The Number of Successful Cases Is Dwindling," a majority opinion by New York's Appellate Division, First Department (which handles appeals from the Manhattan and Bronx Counties) recently dismissed the lion's share of a plaintiff's personal injury claims that resulted from a worksite accident. (The dissenting justices felt that the case should have been dismissed in its entirety.)
In this particular case, the plaintiff was injured when the unsecured plywood ramp upon which he was wheeling construction debris down a 1-1/2 foot height differential from the sidewalk curb to the street collapsed beneath him. The plaintiff sued both the construction site's general contractor and owner (for a general discussion about the potentially liable parties for a worksite accident, and the theories pursuant to which they can be sued, please see our article, "Construction Accident Liability Under New York Law") under common law (i.e., standard, non-statutory) negligence, as well as the statutory protections afforded under §§240(1) and 241(6) of the Labor Law.
In dismissing most of the plaintiff's claims, the appellate court reiterated the rule that in order to avail oneself of the statutory provisions and protections of the Labor Law, the plaintiff must affirmatively prove that the defendants violated specific safety rules that were directly applicable to the accident. And since the Industrial Code provisions cited by plaintiff were not directly on point, these claims were ultimately dismissed.
Given the vocal dissent in this case (as well as the likely seriousness of the plaintiff's personal injuries), I would be very surprised if the defendants do not appeal this decision in the hopes of getting the Court of Appeals to dismiss the case in its entirety. There is another reason I would be surprised if they don't appeal: I've known the defendants' attorney for over 12 years, and he's not afraid to appeal a ruling he dislikes.
Category: Construction Site Accidents
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