Case Summary : Luis F. Ortiz v. Varsity Holdings, LLC, 2011 N.Y. LEXIS 3655 (Dec. 20, 2011).

Summary: Luis F. Ortiz v. Varsity Holdings, LLC, 2011 N.Y. LEXIS 3655 (Dec. 20, 2011). At issue on this appeal was whether the plaintiff’s fall from the ledge at the top of the dumpster was protected by §240(1). At the time of his injury, the plaintiff and a co-worker were rearranging construction debris inside a dumpster to make more room. The court denied plaintiff’s motion for summary judgment and noted:

  1. Plaintiff failed to establish that he was required to stand on or near the ledge.
  2. Plaintiff failed to establish that there was a safety device of the kind enumerated in §240(1) that would have prevented his fall.

These factors created issues of fact.

Practice Note: This is an excellent case that sets forth the injured plaintiff’s burden of proof

Topic Tags: Application of Force or Gravity to an Object or Person, Plaintiff’s Burden of Proof