CONFLICTING TESTIMONY ABOUT USE OF SAFETY DEVICES
After the New York County Supreme Court denied an injured plaintiff's request for summary judgment on the bulk of his Labor Law causes of action, and dismissed his “Labor Law § 200 and common-law negligence claims" in response to the defendants’ motion, the plaintiff appealed.
Apparently, while a 12-foot-long steel beam was being removed from a film set at Astoria Studios, the plaintiff claimed that the beam started spinning and that he attempted to intervene (by going under the beam) to prevent it from hitting his fellow co-workers.
Given there was conflicting testimony as to whether “tag lines” were used to mitigate the spinning -- (with the plaintiff claiming they were in use, while his supervisor stated to the contrary) -- and that it was unclear whether the injury was caused by the failure to provide adequate safety devices (the tag lines), or triggered by the plaintiff’s “own unauthorized and admittedly dangerous conduct of moving under the beam while it was being lowered," the Appellate Division, First Department, thought the denial of the plaintiff's motion was appropriate given the unresolved “issues of fact.”
And since the plaintiff did not oppose the dismissal of his Law Law § 200 and common-law negligence causes of action, the AD1 thought those claims had been “abandoned.” While not properly preserved for appeal, the AD1 still concluded that their dismissal was appropriate given the absence of any proof that “defendant actually exercised supervisory control over the work.”
We wonder how this case is going to work out. (Tag us if you find out before we do!)
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DECISION