Imberson Veliu v Verizon New York Inc.
Attorneys and Parties
Brief Summary
Construction-site injury involving trench work and falling concrete, and whether the worker was entitled to summary judgment under Labor Law § 240(1) [requires certain workers to be properly protected from gravity-related risks and imposes a nondelegable duty on owners, contractors, and their agents].
The trial court granted plaintiff summary judgment on liability on his Labor Law § 240(1) claim, finding that under either version of the accident the 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 about how the accident happened and, under defendant's version, whether plaintiff was the sole proximate cause because lumber bracing was available and plaintiff may have known or should have known the trench area needed to be braced.
Background
Plaintiff, a foreman and 'pitman' employed by nonparty De-Bar Company Construction Corporation, was working in a trench while Verizon's underground PVC pipe installation project was underway. Plaintiff said he was standing in a trench about three to four feet deep, directing a backhoe operator, when a large piece of concrete curb being hoisted several feet in the air rolled out of the backhoe bucket and struck his leg. Defendant submitted a coworker affidavit stating instead that no object fell from the bucket; rather, a piece of curb overlay detached during excavation and slid into the trench, striking plaintiff. Defendant also submitted evidence that lumber braces were available on site and that plaintiff, as pitman, had responsibility for pit safety and had directed bracing in other trench areas.
Lower Court Decision
Supreme Court, New York County, granted plaintiff's motion for summary judgment on liability under Labor Law § 240(1), reasoning that even though there were two competing versions of the accident, both showed absent or inadequate safety protection.
Appellate Division Reversal
The Appellate Division, First Department, reversed and denied plaintiff's motion. The court held that the conflicting accounts created credibility and causation questions for the factfinder. It further held that, even assuming defendant's version was correct, factual issues remained as to whether plaintiff was the sole proximate cause because he may have known additional lumber bracing was needed and available but was not used. The court also stated that Labor Law § 240(1) can apply to a falling object caused by trench collapse from improper bracing, and that a trench depth of at least two feet was not a de minimis elevation differential.
Legal Significance
The decision shows that a plaintiff is not entitled to summary judgment under Labor Law § 240(1) where the record presents materially different accident mechanisms and unresolved questions about sole proximate cause. It also confirms that trench-related falling-object accidents may fall within Labor Law § 240(1), but liability still may not be resolved summarily if there is evidence that an available protective device, such as trench bracing, was not used and the worker may have been expected to use or direct its use.
Even in a gravity-related construction accident, summary judgment for a worker can be denied when the evidence conflicts on how the accident occurred and when there is proof that available safety devices may have prevented the accident and the worker may have been responsible for using them.