Neither Plaintiff or Defense Gets Summary Judgment in Labor Law Case Where Construction Worker Fell from Unsecured Wooden Planks into Trench

Case: Ventimiglia v. Thatch, Ripley & Co., LLC

Court: Supreme Court, Appellate Division, Second Department, New York.

Date: 6/27/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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Facts: This accident occurred when the plaintiff was working on constructing a building. He was walking on planks that passed over a trench and were the only way onto the job site. He was toting lumbar on his shoulders and crossing the planks when the planks spread and he fell into the trench some eight feet.

Accident victim sued the owner, property manager and construction manager.

Held:

The lower court made a mistake when it granted summary judgment to the defense dismissing the accident victim's N.Y.S. Labor Law claim. This worker was injured when he fell from a height. This is the type of elevation-related risk that the Labor Law is meant to protect workers from. The wooden planks were like a scaffold.

However, the plaintiff is not granted summary judgment in his favor on his Labor Law claim. There is, a disagreement as to whether the trench actually existed, which raises a question of fact for a jury.

The lower court also made a mistake in dismissing the accident victim's common law (regular) negligence claim. This plaintiff raised a question of fact by showing that the planks were over the trench for six months before the accident. Thus, there is an issue as to whether the defendants should have known about this potentially dangerous condition, also know as "constructive notice."

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