Practice point: To establish a cause of action, a plaintiff
must show that the statute was violated and that the violation
proximately caused his injury. Liability is contingent upon the existence of a hazard
contemplated in § 240(1) and a failure to provide, or the inadequacy of,
a safety device of the kind enumerated in the statute.
Student note: The injured worker's contributory negligence is not a defense. However, if adequate safety devices are provided
and the worker either chooses for no good reason not to use them, or
misuses them, the plaintiff will be deemed the sole proximate cause of
his injuries, and liability will not attach.
Case: Fernandez v. BBD Developers, LLC, NY Slip Op 01189 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Motions for leave to renew.
