Feroleto Law, Buffalo NY

FOURTH DEPARTMENT UPHOLDS LABOR LAW SLIP AND FALL SUMMARY JUDGMENT FOR PLAINTIFF

In Thompson v. 1241 PVR, LLC , a labor law case Plaintiff fell on ice and snow that had accumulated on the floor of the building where he was framing interior walls before a proper roof or windows were installed. Defendants contended on appeal that Supreme Court erred in granting plaintiff’s motion for partial summary judgment on liability, alleging the violation of Labor Law § 241 (6). The Fourth Department  affirmed.

The Court held: It is undisputed that there were in fact accumulations of ice and snow and that Christa was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation the court properly determined as a matter of law that defendants were negligent. Defendants contend, however, that summary judgment is improper because there is an issue of fact with respect to their affirmative defense of comparative negligence. Specifically, defendants contend that plaintiff was negligent based on his failure to use tools provided by defendants to remove the ice and snow; his failure to disclose prior back surgeries; and his failure to take proper precautions while moving too quickly on the slippery surface. Defendants’ duty to remove the ice and snow was nondelegable and, absent any express policy that employees, including plaintiff, were to remove ice and snow, plaintiff cannot be held negligent for his failure to undertake defendants’ nondelegable duty.

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