OFFICES IN
BUFFALO ■ SYRACUSE ■ UTICA ■ KINGSTON
November 25, 2013
New York State Court of Appeals
20 Eagle Street
Albany, New York 12207
RE: Nicometi v Vineyards of Fredonia LLC et al.
APL-2013-00280
TO THE JUSTICES OF THE COURT OF APPEALS:
Appeal of Respondent-Appellant Vineyards of Fredonia LLC
On behalf of Respondent-Appellant Vineyards of Fredonia (“Vineyards”), this
letter, with two copies thereof, is submitted pursuant to 22 NYCRR Part 500.11 in
support of its appeal to this Court, which seeks reversal of the lower court’s holding that
the plaintiff's ground-level slip-and-fall accident was caused by an “elevation-related
risk,” and so comes within the ambit of N.Y. Labor Law § 240(1), simply because he
was wearing stilts at the time.
As demonstrated below in Point I, contrary to the plaintiff’s vocabulary, wrongly
adopted by the lower court, his stilts never “failed,” and they misread this court’s
controlling decision Melber v 6333 Main St., 91 NY2d 759, 763-764 (1998),
misconstruing its phrase, “[h]ad [the stilts] failed while the plaintiff was installing
drywall[.]” The plaintiff merely slipped on ice; there was nothing wrong with his stilts,
and they did not “fail” in the sense that Melber means. As Melber makes clear, slipping
on ice is not an “elevation related risk” of the kind § 240(1) was enacted to address,
regardless of whether the worker is on stilts at the time.
Appeal of the Appellant-Respondent Marc Nicometi
This submission also opposes the plaintiff's appeal, which seeks reversal of the
lower court’s correct holding that an issue of fact exists as to whether the plaintiff’s own
conduct, in ignoring an instruction from his supervisor to avoid the ice—ice that he
himself had complained about even before being so instructed—constitues the sole
proximate cause of his accident. As demonstrated below in Point II,
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POINT I
This Court Should Reverse the Holding That
Labor Law § 240(1) Applies to This Accident,
Which Resulted From a Slip on Ice While Wearing
Stilts.
The lower court incorrectly held that the plaintiff's claim, that he slipped on ice
and fell while he was using stilts to install insulation in a ceiling, comes within the ambit
of N.Y. Labor Law § 240(1), stating:
Supreme Court properly concluded that plaintiff’s fall
was the result of an elevation-related risk for which Labor Law
§ 240 (1) provides protection. Plaintiff alleged that he fell when
his stilts slipped on ice while he was installing insulation at an
elevated level, i.e., the ceiling. . . . Inasmuch as the stilts
“failed while plaintiff was installing the [insulation on the
ceiling]—work requiring the statute’s special protections”
(Melber v 6333 Main St., 91 NY2d 759, 763-764), the court
properly concluded that the statute applies to plaintiff’s section
240 (1) claim. Consequently, the court properly denied the
cross motion.
107 A.D.3d at 1538 (emphasis added).
Vineyards respectfully submits that the lower court, by focusing only on the
passage from Melber quoted in its decision, misconstrued the holding of Melber, which
however, with one exception, has been correctly understood and applied in other
decisions of both that court (the Fourth Department) and of Supreme Court, as
precluding a Section 240 claim where a worker on stilts trips or slips due to a
hazardous condition located on the floor.
The passage in Melber from which the lower court quoted, in its sentence
beginning “Inasmuch as the stilts ‘failed while plaintiff was installing . . . ,’” reads in
full:
The stilts, moreover, performed the function Labor Law §
240(1) required of them: allowing plaintiff to safely complete
his work at a height. Had they failed while plaintiff was
installing the metal studs in the top of the drywall — work
requiring the statute's special protections — a different case
would be presented. But here, as was the case in Ross,
injury resulted from a separate hazard — electrical
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conduit protruding from the floor. Even if the stilts failed
to avoid that pitfall, "plaintiff's injuries allegedly flowed
from a deficiency in the device that was ‘wholly unrelated
to the hazard which brought about its need in the first
instance'" and did not interfere with or increase the danger
of injury in the performance of his elevation-related task (Ross
v Curtis-Palmer Hydro-Elec, 81 N.Y.2d, at 501, supra, quoting
Ross v Curtis-Palmer Hydro-Elec., 180 A.D.2d 385, 394
[Mercure, J., dissenting in part]). Thus, plaintiff must look
elsewhere for his remedy.
.91 N.Y..2d at 763-764 (emphasis added).
As shown by the foregoing, full-context quotation, this court, following the
sentence, “Had they failed while plaintiff was installing the metal studs in the top of the
drywall — work requiring the statute's special protections — a different case would be
presented,” made it clear that the risk that caused the plaintiff's injury, a floor-level
defect, was a “separate hazard,” i.e., was not elevation-related, and therefore was
not one within the category of risks contemplated by Labor Law § 240(1).
Accordingly, this court continued to state:
Even if the stilts failed to avoid that pitfall, "plaintiff's injuries
allegedly flowed from a deficiency in the device that was
‘wholly unrelated to the hazard [i.e., working at an
elevation] which brought about its need in the first
instance'" and did not interfere with or increase the danger
of injury in the performance of his elevation-related task[.]
Id. at 764 (bracketed material and emphasis added; citations omitted).
Nowhere does Melber state that the plaintiff would have been protected by §
240(1) if he had tripped on conduit while actually installing metal studs at the top of the
dryall, as the lower court mistakenly concluded. Such an interpretation is plainly
incompatible with Melber’s clear holding, fully quoted above, that his “injuries allegedly
flowed from a deficiency in the device that was ‘wholly unrelated to the hazard
[i.e., working at an elevation] which brought about its need in the first instance.'"
Therefore, it is necessary to conclude that, by the second sentence in this
passage, “Had they failed, etc.,” this court meant, “had the stilts themselves proven
defective,” and for that reason, “failed” to protect the plaintiff while performing “work
requiring the statute's special protections,” a section 240(1) claim would be presented.
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Compare Gatto v. Clifton Park Sen. Lvg, LLC, 90 A.D.3d 1387, (3d Dept 2011)(one of
the plaintiff’s stilts broke and collapsed, supporting his § 240(1) claim).
This is how Melber has been repeatedly applied by the court below, up until this
decision: as precluding a § 240 claim where a worker on stilts slips or trips on an
condition located on the floor, which is not an elevation-related hazard, and so is not
one that requires “the statute’s special protections,” regardless of whether the
plaintiff was actually performing the elevated work, or only walking from one
point to another between actual working at a height.
Melber was properly understood and correctly applied by in both Russell v.
Widewaters South Bay Road, 289 A.D.2d 1025 [4th Dept 2001], and Mcnabb v. Oot
Bros., 64 A.D.3d 1237 [4th Dept 2009], cases which, although in those cases the stilts
tripped over obstacles on the floor, rather than slipped on ice on the floor, are
indistinguishable from the instant case. The Russell decision reads in full:
Supreme Court properly granted that part of third-party
defendant's cross motion seeking summary judgment
dismissing the Labor Law § 240 (1) claim. Plaintiff Dean
Russell, a subcontractor, tripped over an electrical cord
while working on stilts and, in doing so, "did not encounter a
hazard contemplated by the statute" (Melber v. 6333 Main St.,
91 N.Y.2d 759, 761). [(Emphasis added)].
Similarly McNabb, in which “[p]laintiff was working on stilts when he tripped
over an electrical cord, causing him to fall and sustain injuries,” 64 A.D.3d at 1237,
held:
Contrary to the contention of plaintiff on his cross
appeal, the court properly dismissed the Labor Law § 240 (1)
claim against all defendants because the accident does not fall
within the purview of that statute (see Melber v 6333 Main St.,
91 NY2d 759, 763-764 [1998]; Russell v Widewaters S. Bay
Rd. Assoc., 289 AD2d 1025 [2001]).
Id. at 1239.
The same understanding of Melber was also relied upon to dismiss Labor Law
§240(1) claims in two recent Supreme Court decisions, Garcia v. Mt. Airy Estates, Inc.,
2012 NY Slip Op 50615(U)(S. Ct. Richmond Co. 2012), and Gonzalez v. Majestic Fine
Custom Home, 2012 NY Slip Op 31466U (Sup. Ct. Queens Co. 2012).
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The plaintiff in Garcia “wore stilts as he applied spackle to the ceiling of a
garage,” and so was actually performing elevation-related work, but his § 240 claim was
dismissed because his stilts did not fail; rather he tripped on debris:
The Court of Appeals in 2009 held, the single decisive
question in determining whether Labor Law § 240(1) is
applicable is whether the worker's injuries were the direct
consequence of a failure to provide adequate protection
against a risk arising from a physically significant elevation
differential" (Runner v New York Stock Exch. Inc., 13 NY3d
599, 603 . . . . Here, plaintiff states that the cause of his fall
was "debris . . . pieces of sheetrock . . . trimmings from wood
and other things . . ." . . . , and that the stilts themselves did
not malfunction. Thus, no issue has been raised
suggesting that the stilts failed to perform the function
required of them by statute or that they failed to allow
plaintiff to safely perform his work at the required
elevation . . . . In fact, there is no claim that plaintiff's injury
resulted from any deficiency in the stilts rather than the
debris which had been left on the floor. As a result it is
undisputed that the hazard which caused the accident was
"wholly unrelated" to the hazards contemplated by Labor Law
§ 240 (1). Accordingly, defendants' motion to dismiss plaintiff's
claim under Labor Law § 240(1) must be granted, and the
plaintiff's motion for summary judgment on that issue is denied
(see Melber v 6333 Main Street, 91 NY2d 759, Ross v Curtis-
Palmer Hydro-Electric.Co., 81 NY2d 494).
Slip Opinion at 2, 3 (emphasis added).
Likewise in Gonzalez the plaintiff was actually working on stilts, spackling drywall
in a kitchen, when “the bottom of his right stilt became entangled in a yellow cable on
the kitchen floor, he lost his balance, and he fell forward.” He admitted that the stilts
were in proper working order properly applied to his legs, and, accordingly, Melber was
seen as precluding his § 240 claim:
In Melber v. 6333 Main Street, Inc. (91 NY2d 759), the Court
of Appeals held that a carpenter who was injured when he
walked down a corridor wearing 42-inch stilts that he had been
using to install metal studs in drywall and who tripped over an
electrical conduit protruding from an unfinished floor had no
cause of action based on Labor Law § 240. The Court of
Appeals reasoned that the carpenter's injury resulted
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from the conduit on the floor, not from a failure of the
stilts, and that therefore the injury did not result from an
elevation-related risk. The "plaintiff's accident fell outside the
scope of Labor Law § 240(1)***." (Melber v. 6333 Main Street,
Inc., supra, 762.) Plaintiff Gonzalez failed to distinguish
the Melber case, which is dispositive. Draghi is entitled to the
dismissal of the cause of action based on Labor Law §240(1).
Slip Opinion at 2,3 (emphasis added).
The only post-Melber decision that does not understand Melber as the lower
court did in Russell and McNabb, and as Supreme Court did in Gonzalez and Garcia, is
the First Department’s Matos v. Garden State Brick Face, 272 A.D.2d 70 [1st Dept
2000], which although not stating the actual cause of the plaintiff’s fall from stilts, like the
lower court here mistakenly read Melber as depending on the fact that the plaintiff was
walking to retrieve a tool, rather than performing work at a height:
Here, in distinction to Melber, where the plaintiff was injured in
a fall from stilts as he walked down a hallway to retrieve a tool,
plaintiff was injured in the course of actually performing
construction at an elevation.
272 A.D.2d at 70-71.
Melber was properly understood and applied by the Fourth Department in both
Russell and McNabb, and by the Supreme Court in Gonzalez and Garcia. This court
should reaffirm this correct understanding, and disapprove of the incorrect view of
Melber espoused by the Third Department in Matos.
Accordingly, Vineyards respectfully submits that this court should reverse the
lower court and issue a decision dismissing the plaintiff's claim under Labor Law
§ 240(1).
POINT II
The Lower Court Correctly Held There Is a Factual
Issue as to Whether the Plaintiff's Own Conduct
Was the Sole Proximate Cause of His Accident,
Applying Blake v. Neighborhood Housing Services.
A. Finding That Labor Law § 240(1) applies does not preclude a finding that
the plaintiff was the sole proximate cause of his accident.
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The plaintiff argues incorrectly that because, supposedly, a § 240(1) violation
was a proximate cause of his fall, it was inconsistent for the lower court to find a
question of fact as to whether the plaintiff was the sole proximate casue of his accident,
applying Blake v. Neighborhood Housing Serv., 1 N.Y.3d 280, 290 (2003)(“it is
conceptually impossible for a statutory violation (which serves as a proximate cause for
a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for
the injury”).
First, of course, the lower court must be reversed as to its ruling that § 240(1)
applies to this accident, see Point I, supra. However, even if it did that would not
prevent a factfinder from proceeding with the Blake inquiry.
The lower court held that an elevation-related risk was involved; that stilts were
the safety device provided to work safely at an elevation; and that because the stilts,
supposedly “failed” (i.e., slipped on ice), “the statute applies” to his claim, stating,
“Consequently, the court properly denied the cross motion [for summary judgment
dismissing the § 240 claim].” 107 A.D.3d at 1539. The lower court, however, did not
grant summary judgment to the plaintiff on his § 240(1) claim, and expressed no
conclusion as to whether the claimed violation was the proximate cause of the
accident; instead, it correctly proceeded to hold, that there is a fact issue presented as
to whether the plaintiff was the sole proximate cause of his accident, because he
used his stilts to walk on ice, which, instruction or no, is obviously not a proper use
of stilts:
Although plaintiff met his initial burden on the motion (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]), defendants raised a triable issue of fact by
introducing evidence that he was directed not to work in the
area where the ice was located. Thus, "'[u]nlike those
situations in which a safety device fails for no apparent
reason, thereby raising the presumption that the device did
not provide proper protection within the meaning of Labor
Law § 240 (1), here there is a question of fact
[concerning] whether the injured plaintiffs fall [resulted
from] his own misuse of the safety device and whether
such conduct was the sole proximate cause of his
injuries'" (Thome v Benchmark Main Tr. Assoc., LLC, 86
AD3d 938, 940 [2011]). We therefore modify the order
accordingly.
107 A.D.3d at 1539 (emphasis added).
Thus, the lower court’s holding that “the statute applies” was merely a step in the
inquiry leading to the issue of proximate cause, and as such echoes the Court of
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Appeals’ preliminary holding in Gordon v. Eastern Railway Supply
Inc., 82 N.Y.2d 555, 562 (1993):
In this case, plaintiff was working on a ladder and thus
was subject to an "elevation-related risk". The ladder did not
prevent plaintiff from falling; thus the "core" objective of
section 240 (1) was not met. Accordingly, plaintiff is within the
protection of the statute if his injury was proximately
caused by the risk, i.e., defendant's act or failure to act as
the statute requires "was a substantial cause of the events
which produced the injury" (Derdiarian v Felix Contr. Corp., 51
N.Y.2d 308, 315).
Similarly, Andrews v. Ryan Homes, 27 A.D.3d 1197 (4th Dept 2006), first found
that a prima facie § 240(1) violation had been made out, but then went on to find
questions of fact as to both the “sole proximate cause” and “recalcitrant worker”
defenses:
We conclude that plaintiff met her initial burden on the motion
by establishing that Bobbitt placed a ladder near a window that
was to be cleaned and that plaintiff was injured when she
climbed the ladder and it slid out from under her (see Alligood
v. Hospitality W., LLC, 8 AD3d 1102 [2004]; Boncore v.
Temple Beth Zion, 299 AD2d 953 [2002]; Evans v. Anheuser-
Busch, Inc., 277 AD2d 874 [2000]). In opposition to the
motion, however, defendant presented evidence establishing
that, approximately 30 minutes before the accident,
Bobbitt told plaintiff not to climb the ladder as it was
positioned and, indeed, that Bobbitt had repeatedly told
plaintiff not to use the ladder without someone to steady
it.
27 A.D.3d at 1198 (emphasis added).
This court made it very clear in ROBINSON v. EAST MED. CTR., 6 N.Y.3d 550
(2006), in which the plaintiff fell from the top of a 6-foot stepladder and complained that
a taller stepladder had not been given to him (the defendant proving, however, that
taller ladders were available, but the plaintiff never attempted to get one), that the mere
fact that § 240(1) applies to an activity does not preclude a finding that the worker was
the sole cause of his accident:
Where a "plaintiff's actions [are] the sole proximate cause
of his injuries, . . . liability under Labor Law § 240 (1) [does]
not attach" (Weininger v. Hagedorn & Co., 91 NY2d 958, 960
New York State Court of Appeals
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[1998]; see also Cahill v. Triborough Bridge & Tunnel Auth.,
4 NY3d 35 [2004]; Blake v. Neighborhood Hous. Servs. of
N.Y. City, 1 NY3d 280 [2003]). Instead, the owner or
contractor must breach the statutory duty under section 240
(1) to provide a worker with adequate safety devices, and
this breach must proximately cause the worker's injuries.
These prerequisites do not exist if adequate safety
devices are available at the job site, but the worker
either does not use or misuses them.
B. The giving of an instruction to avoid an unsafe practice Is not essential to
the “sole proximate cause” defense, which focuses rather on the degree of
a plaintiff’s negligence, however evidenced.
The appellant-respondent focuses on the lower court’s mention of the fact that
the plaintiff's supervisor testified that he warned the plaintiff to avoid the ice, and
invokes inapplicable case law regarding the “recalcitrant worker” defense, arguing
that an instruction to avoid an unsafe practice is not the equivalent of providing a proper
safety device. Appellant-respondent’s submission 10 ff. (He also argues that while his
supervisor claims to have given him such an instruction, his coworkers deny having
heard it; which, of course, only goes toward creating an issue of fact.)
First, it must be stressed that there is no genuine issue in this case whether a
“more proper” safety device should have been provided, such as a rolling “baker’s”
scaffold, or a harness, etc., because there is no genuine question that the use of stilts to
perform such ceiling work is common and appropriate, and completely safe so long as
workers use due care while on them. See GATTO v. CLIFTON PARK SENIOR
LIVING, LLC, 90 A.D.3d 1387 [3d Dept 2011], in which a drywall taper’s one stilt
actually collapsed while he was taping a ceiling, and which states:
Plaintiff, the president of his employer, and
representatives from Jersen Industries testified at
depositions that tapers regularly work off of stilts, and that
stilts were "ideal," "typical" and "appropriate"
equipment for performing taping and drywall work.
Neither the owner nor general contractor provided any type
of safety equipment to tapers on the project.
While ladders and baker's scaffolds may have been
present at the scene, there is no proof that using them
would have been feasible or more appropriate for the
project than working off of stilts. No one instructed
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plaintiff to use a ladder or scaffold, nor did anyone instruct
him not to use stilts.
90 A.D.3d at 1387-1388 (emphasis added).
Thus, the “recalcitrant worker” line of cases rejecting arguments that an
instruction to avoid an unsafe practice was given, is not on point here. Such an
instruction, to be sure, figures in some cases holding that an issue of fact exists as to
“sole proximate cause,” e.g., Andrews v Ryan Homes, supra; see also WONDERLING
v. CSX TRANSPORATION, INC., 34 A.D.3d 1244 [4th Dept 2006], stating:
Although defendant submitted evidence that plaintiff fell
when his foot slipped on the wet slippery steel of the
scaffolding, that plaintiff was told not to disassemble the
scaffolding that day because of the wet conditions, and
that safety harnesses were available, defendant did not
thereby establish as a matter of law that the actions of
plaintiff were the sole proximate cause of his injuries (see
Hagins v State of New York, 81 NY2d 921, 922-923 [1993];
see also Whiting v Dave Hennig, Inc., 28 AD3d 1105 [2006]).
We thus conclude on the record before us that there are
issues of fact whether the actions of plaintiff were the sole
proximate cause of his injuries (see Andrews v Ryan Homes,
Inc., 27 AD3d 1197 [2006]; cf. Robinson v East Med. Ctr.,
L.P., 6 NY3d 550, 554-555 [2006]; Blake v Neighborhood
Hous. Servs. of N.Y. City, 1 NY3d 280, 290-291 [2003]).
[See 11 Misc 3d 1061(A), 2006 NY Slip Op 50337(U)
(2006).]
34 A.D.3d at 1235 (emphasis added). However, an instruction is not critical or
necessary to defendants’ “sole proximate cause” defense, in which the focus is on the
plaintiff’s culpability, and whether it went so far beyond ordinary care that it alone should
be deemed to have caused his accident. As was stressed by Vineyards and its general
contractor Winter-Pfohl in the lower court, the plaintiff himself admitted he was aware of
and had complained about the ice before his accident. See Winter Phohl, Inc.’s appeal
brief’s Statement of Facts pp. 3-4, and Point II.
Thus the claimed instruction by plaintiff's supervisor merely underscores the
plaintiff's own negligent misuse of the stilts to traverse ice, of which he admitted he
was aware, and had even complained about. He could have worked around this four-
by-four foot ice patch, whether or not his supervisor had told him to avoid it, but
negligently chose to encounter it and thereby caused his fall.
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This case is, in fact, factually indistinguishable from Blake, in which there was
provided a proper safety device—an extension ladder—which, like the plaintiff's stilts did
not have any defect, but failed to protect him due solely to his own negligence in
using it:
At trial, plaintiff again conceded that he could not identify a
defect in the ladder, that it was stable and there was no
reason to have it steadied during use. He also revealed that
he was not sure if he had locked the extension clips in
place before ascending the rungs. At the close of the
case, the court asked the jury to indicate on the verdict sheet
whether NHS had "the authority to direct, supervise and
control Mr. Blake's work" at the residence. The jury
answered yes. In response to the second inquiry ("Was the
ladder used by plaintiff Rupert Blake so constructed,
operated as to give proper protection to plaintiff?"), the jury
again said yes, leading to the inescapable conclusion that
the accident happened not because the ladder
malfunctioned or was defective or improperly placed, but
solely because of plaintiff's own negligence in the way he
used it.
1 N.Y.3d at 284 (emphasis added).
Here, had the plaintiff, when he applied the stilts to his legs, failed to lock them at
the desired height, or failed to properly secure them to his legs, practically an identical
situation to Blake, where the plaintiff failed to lock the ladder’s extension clips, would be
presented; however, it makes for no distinction that the plaintiff's negligence in using the
stilts came after and not while he applied them.
The dissenters in the lower court base their contrary opinion on a false
conclusion:
In our view, “stilts on ice” is the wrong device from which
to work at an elevation, and we thus conclude that plaintiff
was not furnished with a proper safety device as a matter of
law[.]
107 A.D.3d at 1540 (emphasis added). Vineyards submits that the plaintiff was not
furnished stilts, the device, to work on ice; rather, they were given him to install ceiling
insulation, with no specification as to the floor’s composition or condition. The ice was
mere happenstance, a condition that the plaintiff knew of and could have avoided
had he not been careless.
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The dissenters below attempted unconvincingly to distinguish the lower court’s
precedent, Thome v. Benchmark Main Trans. Assoc., 86 A.D.3d 938 (4th Dept 2011),
which held there to be a factual issue regarding “sole proximate cause” where a worker
had driven a scissors lift into a hole. Thome held:
We agree, however, with the further contention of
defendants that they raised a triable issue of fact whether
plaintiff's actions were the sole proximate cause of his
injuries. In opposition to the motion, defendants submitted
evidence that plaintiff was aware that holes had been cut
into the concrete floor of the building in which he was
working and that, on the morning of his accident, plaintiff
had been specifically directed not to operate the scissor
lift in the area where the holes had been cut. Further,
defendants submitted evidence that plaintiff drove the
raised lift into that area while looking at the ceiling
rather than where the lift was going. Consequently,
"[u]nlike those situations in which a safety device fails for no
apparent reason, thereby raising the presumption that the
device did not provide proper protection within the meaning
of Labor Law § 240 (1), here there is a question of fact
[concerning] whether the injured plaintiff's fall [resulted from]
his own misuse of the safety device and whether such
conduct was the sole proximate cause of his injuries"
(Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439 [2000]).
86 A.D.3d at 939-940 (emphasis added).
The dissent, based on its review of Thome’s appeal record, argued that “there
was at least some demarcation of the hazard in that case.” However, the dissent failed
to indicate on what grounds they base this distinction; no precedent is cited, nor is any
known, for the proposition that failing to obey an instruction to avoid a known hazard will
support a finding of “sole proximate cause” only if the hazard is clearly marked.
Furthermore, it is undisputed that the ice was apparent and visible enough to
the plaintiff that he had himself noticed it, and complained about it, beforehand, so the
dissent’s effort to distinguish Thome clearly fails.
The dissenters’ other argument that “the stilts were not ‘so . . . placed . . . as to
provide proper protection to plaintiff,’” 107 A.D.3d at 1540 (emphasis added), simply
ignores the fact, that only the plaintiff was responsible for placing his stilts
properly; just as the plaintiff in Blake was solely responsible for operating his
extension ladder properly, “operated” being another of the three actions that § 240(1)’s
last phrase requires owners and contractors to do properly (“and other devices which
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shall be so constructed, placed and operated as to give proper protection to a
person so employed”). If only the worker can place or operate the safety device in
question, the owner or general can only be faulted for failing to provide it. Here, the
proper safety device—a pair of stilts—was provided; it was the plaintiff who failed to
place and operate it properly.
CONCLUSION
For the foregoing reasons, the respondent-appellant Vineyards of Fredonia, LLC,
respectfully requests that this court issue an order reversing the order appealed from
and dismissing the plaintiff's Labor Law § 240(1) claim, and affirming the lower court’s
order to the extent that it held there to be a question of fact regarding whether the
plaintiff's conduct was the “sole proximate cause” of his accident.
Very truly yours,
Laurence D. Behr
Copies sent to all counsel of record