Mikolaj Szczesiak v. ERY Tenant LLC, et al.
Attorneys and Parties
Brief Summary
Construction site fall protection under New York Labor Law § 240(1) [designed to protect workers against harm directly flowing from the application of the force of gravity to an object or person]; whether a defective, unsecured A‑frame ladder that moved after a mild electric shock failed to provide proper protection.
Denied plaintiff’s motion for summary judgment on § 240(1), finding issues of fact as to sole proximate cause based on plaintiff working with live electricity.
The denial of plaintiff’s motion for summary judgment on liability under Labor Law § 240(1).
Undisputed evidence showed the only available ladder had bent crossbeams and worn feet and moved/wobbled before plaintiff fell, making it an inadequate safety device; alternative devices (Baker scaffold or scissor lift with railings) would have prevented the fall; defendants’ expert was speculative and failed to address the ladder’s defects; plaintiff was not propelled from the ladder by the shock, and any failure to de-energize fully would be comparative negligence, which is not a defense to § 240(1).
Background
Plaintiff, a 6-foot-tall electrician, was troubleshooting nonfunctioning ceiling lights on the 11th floor on September 11, 2019. He used the only suitable device he could find: an old 10-foot fiberglass A‑frame ladder to reach an access panel 11 feet above the floor. After de-energizing only specific circuits per his employer’s instructions, he worked for 15–20 minutes on low-voltage controls. He received a brief, mild electric shock to his hand, removed his hand, and the ladder immediately moved, wobbled, shifted, and fell, causing him to fall backward. The general contractor’s superintendent recorded that plaintiff reported the ladder moved before he fell. Photos identified by plaintiff showed the ladder had bent/curved crossbeams and worn feet. The general contractor’s project manager and corporate safety manager testified that a Baker scaffold or scissor lift with railings could have been used and would have prevented a fall; the safety manager stated the depicted ladder should have been removed from service.
Lower Court Decision
Supreme Court, New York County, denied summary judgment on Labor Law § 240(1), relying on the foreman’s affidavit noting live wires remained energized and concluding there were triable issues as to whether plaintiff’s conduct was the sole proximate cause.
Appellate Division Reversal
Reversing, the court granted plaintiff summary judgment on § 240(1). It held the ladder was defective and inadequate as a safety device, as shown by plaintiff’s testimony, corroborating photographs, and the GC’s safety manager’s testimony. Plaintiff’s account that the ladder moved/wobbled after a mild shock established failure of the device to provide proper protection. A Baker scaffold or scissor lift with railings would have prevented the fall. Defendants’ expert was conclusory, inspected the site years later, did not inspect or address the ladder’s bent crossbeams and worn feet, and lacked record support for the theory that plaintiff pulled the ladder over. Plaintiff was not propelled off by the shock; thus Nazario and Cutaia were distinguishable. Any failure to de-energize fully was, at most, comparative negligence, which is not a defense to § 240(1).
Legal Significance
Clarifies that after an electrical shock, Labor Law § 240(1) liability attaches where the ladder is defective or fails to provide proper protection and the fall results from the device’s inadequacy, even if electricity was not fully shut off. Evidence that a ladder moved or wobbled can establish a prima facie § 240(1) violation; speculative expert opinions without addressing demonstrated defects are insufficient to create triable issues. Comparative negligence remains no defense under § 240(1).
A worker who falls from a defective ladder that moves or wobbles after a mild shock is entitled to summary judgment under Labor Law § 240(1) when safer alternative devices were available and the shock did not propel the worker from the ladder; defendants cannot defeat liability with speculative expert theories or comparative fault arguments.