Summary : Joseph Miranda III v. Norstar Building Corporation, 909 N.Y.S.2d 802 (3d Dept. 2010) (Oct. 28, 2010). Plaintiff sustained a traumatic brain injury when he fell approximately 30 feet from a roof while working on a construction project. Plaintiff was working within inches of the edge of the roof. The defendants were using a safety monitoring system approved by OSHA which consisted of a safety monitor warning the other workers when they got too close to the edge of the roof. Just prior to his fall, the monitor warned the plaintiff that he was too close to the edge. The court granted plaintiff’s motion under §240(1) and held that the plaintiff established that defendants failed to provide him with a safety device, and that the violation was the proximate cause of plaintiff’s fall. With respect to liability between the defendants and third-party plaintiff, the court held that there were issues of fact as to whether the plaintiff sustained a “grave injury” and therefore, the defendants were not entitled to common law indemnification. In addition, the court found issues of fact as to whether a defendant was entitled to contractual indemnification because the defendant seeking indemnification could be held negligent.
Practice Note: The court noted that contractual indemnification provisions must be strictly construed.