Imberson Veliu v Verizon New York Inc.
Attorneys and Parties
Brief Summary
Construction-site injury litigation involving Labor Law § 240(1) [requires certain workers be properly protected from gravity-related risks and imposes a nondelegable duty on owners, contractors and their agents], specifically whether a trench worker struck by concrete was entitled to summary judgment on liability.
The lower court granted plaintiff summary judgment on liability, reasoning that under either version of the accident the necessary safety devices were absent or inadequate.
The Appellate Division reversed the grant of summary judgment to plaintiff and denied the motion.
The majority found triable issues of fact because the evidence conflicted on how the accident happened and, under defendant's version, there was also evidence that plaintiff may have been the sole proximate cause by failing to use available lumber bracing for the trench despite knowing it was needed and available.
Background
Plaintiff, a foreman and "pitman" for nonparty De-Bar Company Construction Corporation, was working in a trench while Verizon's underground PVC pipe installation work was being performed. Plaintiff testified that while he stood in a trench about three to four feet deep, a large piece of concrete curb being lifted several feet in the air by a backhoe rolled out of the bucket and struck his leg. A coworker, however, stated that no object rolled from the bucket; instead, a concrete curb overlay detached from the curb and sidewalk during excavation and slid into the trench, hitting plaintiff. De-Bar's co-owner further stated that plaintiff was responsible for pit safety, had directed workers to brace parts of the trench, and knew additional lumber bracing was available on site.
Lower Court Decision
Supreme Court, New York County, granted plaintiff summary judgment on liability under Labor Law § 240(1), concluding that even though there were conflicting accounts of the accident, both versions showed absent or inadequate safety protection.
Appellate Division Reversal
The Appellate Division, First Department, reversed and denied summary judgment. The court held that the conflicting accounts created credibility issues for the factfinder. It also held that, even if defendant's version were accepted, factual issues remained as to whether plaintiff knew or should have known the trench area needed bracing and whether available lumber braces could have been used, supporting a possible sole-proximate-cause defense. The court nevertheless agreed that Labor Law § 240(1) can apply to a falling object caused by improper trench bracing and that the trench depth here created a non-de minimis elevation differential.
Legal Significance
This decision underscores that a plaintiff is not entitled to summary judgment under Labor Law § 240(1) merely because both sides describe a gravity-related event. Summary judgment can be defeated where competing evidence raises a factual dispute about the accident mechanism or where the record supports a sole-proximate-cause theory based on an available safety device the worker knew was expected to be used. The case also confirms that trench-collapse or trench-bracing accidents may fall within Labor Law § 240(1) when the elevation differential is meaningful.
Even in a construction accident involving a trench and falling concrete, plaintiff could not win summary judgment under Labor Law § 240(1) because the record left open both how the accident happened and whether plaintiff failed to use available trench bracing that may have prevented it.