In Barreto v. Metropolitan Transportation Authority, the Appellate Division, First Department (Judges Tom, Friedman, Freedman, Feinman) court affirmed the dismissal of plaintiff’s claims under Labor Law §§ 200, 240(1) and 241(6), holding that plaintiff was the sole proximate cause of the injury-causing accident.
Plaintiff was injured when he fell into an uncovered manhole while performing asbestos removal, which entailed removing and replacing the manhole cover.
The court described the work as follows:
[Plaintiff’s employer P.A.L. Environmental Safety Corp.] removed asbestos during night shifts that started at about 8:00 p.m. The standard procedure for the asbestos removal work was as follows: At the beginning of each shift, PAL workers constructed a wooden enclosure covered with a plastic sheeting around the manhole to protect the surroundings from asbestos contamination. An opening in the enclosure provided access to the manhole. After the PAL workers erected the enclosure, MTA inspectors checked to see that electricity had been turned off in the manhole, and IMS monitored the below-ground air quality before workers descended. Once given permission, at least two PAL workers … removed the cover and placed it outside the enclosure. They then sealed the enclosure opening and descended through the manhole.
At the end of the shift, the PAL workers were directed to remove their equipment from below ground, exit the manhole, replace its cover, and dismantle the containment enclosure surrounding the manhole.
The court then described the accident:
Plaintiff’s accident occurred at the end of a shift, after he and two coworkers had finished working below ground and climbed out of the manhole. Instead of covering the manhole as they had been directed, plaintiff and coworkers began dismantling the containment enclosure. Plaintiff then fell into the uncovered manhole. In his deposition testimony, plaintiff acknowledged that his PAL supervisor had told him that same day to cover the manhole before breaking down the enclosure, but that he neither checked nor asked whether the manhole was open before starting work “because the supervisor is supposed to do that.” The only people present at the site when the accident occurred were plaintiff, his two coworkers, and a PAL shop steward.
The trial court found that plaintiff was the “sole proximate cause of the accident because he did not cover the manhole before beginning to dismantle the containment enclosure.”
Labor Law § 240(1) “imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks” and imposes liability “where a violation of that duty proximately caused injuries.”
It does not apply, however, “[w]here a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it.” That was exactly what happened here:
[P]laintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident.
Since the manhole cover was sufficient, Labor Law § 240(1) did not require defendants to provide additional protective devices:
Plaintiff’s claim that the statute required defendants to furnish a guardrail around the manhole, or safety netting or a harness, is not applicable here where the manhole cover was the adequate device for protecting the workers. There is no reason that other devices were necessary after the workers exited the manhole or that the manhole cover was inadequate. Moreover, neither a guardrail, netting nor a harness would have prevented the accident as they would have been opened or removed to allow the workers to exit the manhole and to deconstruct the enclosure.
Finally, the absence of supervision or notice of a premises defect required dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims.
Judge Feinman dissented in part. He argued that defendants violated Labor Law § 240(1) by not providing a railing or other adequate safety device while the cover was off the manhole and that this was “also a proximate cause” of the accident.