Earlier this week, on March 20, 2019, New York’s Appellate Division, Second Department, affirmed a lower Court’s order granting partial summary judgment on liability in Kings County (Brooklyn) to the Plaintiff, a painter, who claimed injury after falling from a ladder.

In the case of Ivan Gomez v. Kitchen & Bath by Linda Burkhardt, Inc., et al., ___ AD3d ___, Appellate Division Docket Number 2017-01092, the Court addressed a situation involving an A-Frame ladder. This case presented legal issues involving New York’s Labor Law, Section 240(1), and issues of evidence.

A review of the record revealed that Mr. Gomez was caulking on a high ladder while working on a high-end private home renovation in tony Bridgehampton. Mr. Gomez fell from a ladder and sustained an open fracture of his leg. The hospital record indicated that Mr. Gomez had fallen from a scaffold, which differed from Mr. Gomez’s testimony about how the accident happened. Mr. Gomez testified through an interpreter in Spanish.

Mr. Gomez testified at his deposition that the ladder his supervisor provided to him had a broken lock that was supposed to hold the ladder open. Mr. Gomez testified that his supervisor inserted a screwdriver into a hole on the ladder as a makeshift lock. Mr. Gomez testified he had complained about the defect to his supervisor, but his supervisor failed to correct the problem. After Mr. Gomez fell, he noticed the screwdriver had fallen out.

The Court found that the facts as presented — involving a ladder with a defective lock — established the general contractor’s prima facie violation of New York’s Labor Law Section 240(1).

The Court further addressed the fact that the hospital records contained notations that Plaintiff was injured when he fell off a scaffold. The Court noted that these notations were not attributed to the Plaintiff, and further, that they were not germane to his treatment, and therefore would not be admissible for their truth under the business records exception to the hearsay rule.

The Court did not mention in its opinion the fact that in the record, defense counsel pointed out that Mr. Gomez admitted the accident was not witnessed, as Mr. Gomez was alone at the time.

The Court found ultimately that “[while] hearsay statements may be used to oppose motions for summary judgment, they cannot, as here, be the only evidence submitted to raise a triable issue of fact.”

The Takeaway

From a contractor’s standpoint, it is critical that properly functioning ladders be provided on site, or, potentially, Baker scaffolding instead of a ladder. From an underwriting perspective, it’s important that your insureds have properly functioning ladders that are in good repair. This will protect workers, and help to avoid the exposure of Labor Law 240(1).