Fourth Department – Labor Law: Verdugo v. Fox Building Group

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Labor Law

Safety devices – Plaintiff’s misuse

Verdugo v. Fox Building Group

CA 22-00014

Appealed from Supreme Court, Onondaga County

Background: The plaintiff commenced an action under the Labor Law after he was injured from a fall while he was installing roof trusses on a building as part of a commercial construction project. The plaintiff was approximately 13 to 14 feet off the ground and working while wearing a body harness with a four-foot-long lanyard. The plaintiff appealed from the grant of summary judgment with respect to the defendants’ liability under Section 240(1) of the Labor Law.

Ruling: The Appellate Division denied summary judgment and reinstated the cause of action. The court noted that a plaintiffs’ decision to employ one method of performing a necessary task, even if a safer method existed, constitutes nothing more than comparative fault that is not a defense under the statute. The plaintiff testified that he did not receive specific training regarding the body harness and lanyard. Rather he used it in such a way that he believed was safe so long as the cable hoisting the truss held it in place. Therefore, there was a question of fact as to whether the plaintiff would not have been injured had he not made that choice.

Sean Cooney, of Dolce Panepinto, for the plaintiff-appellant; David M. Katz, of Smith, Sovik, Kendrick & Sugnet, Steven V. Debraccio, of Burke, Scolamiero & Hurd, Meghan M. Brown, of Goldberg Segalla, and Christopher A. Guetti, of Smith, Dominelli & Guetti, for the defendants-respondents.