New York State Court of Claims

New York State Court of Claims

VRETTOS v. THE STATE OF NEW YORK, #2007-030-522, Claim No. 108900, Motion No. M-72567


Claimant granted partial summary judgment based upon strict liability provisions of Labor Law §240(1). As he and his supervisor lifted a heavy window lintel while standing on an unsecured scaffold, the scaffold moved away from the building, and claimant fell in the space between the building and the scaffold almost 20 feet onto the cement landing at the bottom of an exterior stairway. Claimant established without material contradiction that he was engaged in the repair of a structure owned by the State of New York, as an employee of a contractor hired by the State to perform an emergency repair, that the repair work involved an elevation related risk, no safety equipment other than an unsecured scaffold was supplied, the accident and resulting injuries occurred because of an elevation related risk, and such injuries were proximately caused by the failure to provide adequate safety equipment. The fluid legal issue presented by the facts related to when it will be determined as a matter of law that safety equipment was on-site, adequately explained and offered, and perhaps refused. Claimant and immediate supervisor only witnesses to accident. Defendant did not rebut the prima facie showing made by claimant.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 2, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for partial summary

judgment on the issue of liability:

1,2 Notice of Motion, Affirmation in Support by Gail S. Kelner, Esq., Attorney for Claimant and accompanying exhibits

  1. Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General and attached exhibits
  1. Reply Affirmation by Gail S. Kelner, Esq. and attached exhibits
5,6 Filed Papers: Claim, Answer Vasilios Vrettos alleges in Claim number 108900 that on September 15, 2003[1] he was seriously injured in a fall from a scaffold on which he was working as a laborer at a construction site owned, operated, and controlled by the State of New York. In the Claim, Defendant’s liability is premised upon alleged violations of Labor Law §§200, 240, 240-a and 241(6). Issue was joined by service of the Answer on March 11, 2004.

Claimant now moves for partial summary judgment based upon the strict liability provisions of Labor Law §240(1).

On September 15, 2003 Mr. Vrettos was employed by Thoro Building Restoration, Inc. (hereinafter Thoro), a company performing masonry and brick work pursuant to a contract between Thoro and the State of New York at the Bernard Fineson DDSO building at 84-45 Winchester Boulevard in Queens. The premises are also referred to as Building 71. Claimant and his supervisor, Emmanuel Perdikakis, were in the process of installing a lintel over the first story windows of Building 71, working from a scaffold approximately 10 feet above ground level on the right side, but 19 to 20 feet above the bottom landing of an exterior stairway on the left side where claimant was working. Hung from the side of the building, the scaffold did not contain a guardrail on the side closest to the building, and was not anchored to the building in any fashion. It is alleged that no safety harnesses or belts had been supplied.

Mr. Vrettos said no workers other than he and Mr. Perdikakis were there that day. He assumed Mr. Perdikakis, had put the scaffolding up prior to that day, and seemed to adjust it when claimant arrived with him in the morning. Claimant’s job was to put up the “argo line” [Affirmation in Support by Gail S. Kelner, Esq., Exhibit F, p. 23]. As they were lifting the lintel - a two-man job - the scaffold moved away from the building, and claimant fell in the space between the building and the scaffold onto the cement landing at the bottom of the exterior stairway, sustaining serious injury.

Mr. Perdikakis indicates in his affidavit that he was employed as a construction supervisor at the time of the accident by Thoro, and was aware that the company had been awarded an emergency construction job at Building 71. [Ibid. Exhibit G]. This was the second day on the job, as he recalled it, and the first and only day claimant worked on the job. Mr. Perdikakis states that there were no other workers at the job site that day. [Id.] “. . . [The] job involved the removal, repair, restoration and replacement of loose stones on the exterior of the building around the first and second floor windows.” [Id.]. He confirms that it was he who set up the scaffolding, and describes it as having
“. . . a metal platform . . . approximately 16 feet long by 2 feet wide, . . . suspended from the roof on ropes just above the rear exterior staircase leading from the first floor/ground level to the basement . . .[it] could then be raised and lowered as necessary . . .

The scaffold was suspended so that it rested against the building. There was a railing on the outside of the platform. There was no railing on the side of the platform which rested against the building. The scaffold was not tied into the building . . .

[Mr. Perdikakis] placed an extension ladder at ground level to get on and off the scaffold when it was elevated at the 10 feet level above the ground . . .

When . . . [claimant and Mr. Perdikakis] arrived [at the job], the scaffold was already erected from the day before

. . . [He] told Mr. Vrettos that we would be hanging the window lintel above the first floor windows. The lintel was approximately 3 inches by 4 inches by 13 feet long, weighed approximately 150 pounds and was made of steel . . .

. . . [They] put the lintel on the scaffold. When . . . [they] were both on the scaffold, we started to lift the lintel. Mr. Vrettos was on the left side of the scaffold . . .

[They] did not have any safety belts or harnesses on the work site . . .

[They] started to lift the lintel . . . [Mr. Perdikakis] saw Mr. Vrettos using both hands to lift and hold the lintel . . .

As Mr. Vrettos lifted the lintel, the scaffold suddenly swayed and he dropped his end of the lintel. After he dropped his end, . . . [Mr. Perdikakis] could not support . . . [his] end and it fell and hit the scaffold which moved away from the building by 5-6 inches and the lintel fell off the scaffold through this opening. . . .

After the lintel fell, Mr. Vrettos lost his balance and fell against the building . . . [causing] the scaffold to move away from the building another 4 feet and Mr. Vrettos fell thorough (sic) this opening between the scaffold and the building wall . . . ” [Id.].
Mr. Perdikakis opined that safety belts or a harness would have prevented Mr. Vrettos’ fall.

Samuel Mason, an area supervisor for Queens and the Bronx from the New York State Office of General Services, (OGS) Design and Construction Division, confirmed at his deposition that Building 71 was under the aegis of two state agencies: the New York State Office of Mental Health and the New York State Office of Mental Retardation and Developmental Disabilities. [Affirmation by Gail S. Kelner, Esq., Exhibit B]. He indicated that there was a structural emergency with regard to this building - located on the Creedmoor campus - and that the work required to resolve the emergency repair was the removal and replacement of brickwork “. . . in an area between the first floor window and the second floor window on . . .” the side of what used to be a two-story porch, now enclosed by brick. [Id. p. 38]. When the job was awarded to Thoro, Mr. Mason met with personnel from the company, but did not particularly remember with whom he met. Mr. Mason had no recollection of any persons he may have met with from Thoro with respect to this job, had no idea how many workers were on the job, and had no specific recollection of seeing Thoro workers working from the scaffolding prior to the accident. He indicated that he “believe[d]” that in a discussion of “safety issues” during the original meeting with the contractor, that are recorded in “minutes” and transmitted to a more centralized part of OGS, there would be mention of the scaffolding, and the necessity of “. . . protective barriers that no outsiders can get to it, the workers were in safety harnesses and hardhats, whatever we feel the job calls for as far as safety is concerned.” [Id. p. 32]. The contract closeout report confirms the award of the contract and the nature of the work, and indicates that work started on September 9, 2003, and was completed on September 16, 2003. [Ibid. Exhibit C]. A final inspection is reported as occurring on October 14, 2003. [Id.].

Although, significantly, Mr. Mason did not witness claimant’s accident, and was not present at the site on that day before the accident occurred, he prepared an accident report from the information supplied and identified investigative reports prepared by the facility. [See ibid. Exhibit D]. A photograph of the accident location, depicting the subject stairwell, and the area on the building facade containing a brick-enclosed, two-story porch where the repairs needed to be made, was also identified during Mr. Mason’s deposition. [Ibid. Exhibit E]. He indicated that at some unspecified time after the initial meeting with the contractor, after the bid was awarded, he recalled going with somebody to the building site to further describe the work to be done.

“. . . [H]ook type scaffolding that’s hooked from the roofing [was used] . . . [with a] platform [that] is lowered down by ropes . . . manually.” [Id. p. 38]. Mr. Mason confirmed that the scaffolding hung immediately above the stairwell. Mr. Mason indicated that in terms of his responsibility for the hanging of the scaffold, it would be to determine “. . . that it was secured and done in a safe manner.” [Id.]. When asked if he visually examined it, Mr. Mason replied: “Most likely, yes, I do.” [Id. p. 41].

Mr. Mason maintained during his deposition that safety harnesses would have been available at the job site, but he did not independently recall whether there were any harnesses available on that day, what type of instruction may have been given, nor did he recall seeing any harnesses on the ground or on the scaffold when he was at the construction site after the accident. He did not recall seeing workers there using harnesses in the past, but said that he would stop the work were workers there without harnesses, thus they “would have” been using them. [Id. p. 52]. He said: “. . . I don’t recall what I saw the day of the accident.” [Id. p. 53].
Claimant argues that the State should be held strictly liable as a matter of law based on violation of Labor Law §240(1), in that the State failed to provide and properly place, operate and secure the safety equipment mandated. Labor Law §240(1) - the so-called Scaffold Law - imposes strict liability and requires “. . . [a]ll contractors and owners and their agents . . . [with some exceptions] in the erection, demolition, repairing, altering painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The work being done should contain an elevation related risk, and the injury suffered by the worker should be associated with that risk.

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). The use of an attorney’s affirmation appending pertinent deposition testimony, affidavits, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[2]

Although defendant argues that claimant’s attorney’s affirmation contains only conclusory statements, this inaccurately describes what supporting material has been included, namely, claimant’s deposition testimony, the deposition testimony of Mr. Mason, an affidavit from Emmanuel Perdikakis, and documents generated by the State’s agents, including the emergency contract, a report of the accident and an investigatory report. Accordingly, and as an initial matter, the Court will treat the motion as adequately supported.

The Court is satisfied, based upon claimant’s presentation, and the lack of presentation of any material contradictory information, that claimant is entitled to judgment as a matter of law, as there are no triable issues of fact presented as to the claimant’s cause of action premised upon violation of Labor Law §240(1). Claimant has clearly established that he was engaged in an activity protected under Labor Law §240(1). See generally Rocovich v Consolidated Edison Co., 78 NY2d 509 (1991). Failure to provide appropriate safety devices, or providing only defective or insufficient equipment, violates Labor Law §240(1). Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513 (1985); Bland v Manocherian, 66 NY2d 452 (1985); Labodin v State of New York, 242 AD2d 563 (2d Dept 1997). Furthermore, Claimant’s unprotected exposure to a gravity related risk by being directed to lift an awkward and heavy object while standing on an unguarded scaffold without a harness only added to the risk of injury. Liability, of course, is contingent upon both a finding of a statutory violation and proximate cause.

Since claimant has established prima facie entitlement to judgment as a matter of law, it is incumbent upon the defendant to come forward and satisfy its burden. The opposing party “must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his . . . [defense] . . . or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient . . . (citations omitted).” Zuckerman v City of New York, supra, at 562.

Defendant’s suggestion that the testimony of Mr. Mason presents an issue as to whether the claimant was provided and refused a safety harness is not persuasive. Mr. Mason - throughout his deposition - clearly indicated he was not present on the day of the accident and that he could not provide any meaningful testimony concerning the job at all. He had only the most marginal recollection of any details concerning the mechanics of the job or who he spoke with, and spoke in generalities concerning what his practice might be were certain conditions present. Having Mr. Mason pronounce - after he had declared he had no independent recollection of seeing any Thoro employees at the job site - that had he seen workers working without harnesses, they would have been stopped, is nothing more than speculation built upon speculation. This is not evidence, sufficient to rebut the prima facie showing made by claimant that he fell from a scaffold that contained a guardrail only on one side, without a safety harness, and fell through an opening created when the scaffold swayed while he worked with his supervisor, at his supervisor’s instruction. Cf. Job v 1133 Building Corp., 251 AD2d 459 (2d Dept 1998).[3]

Similarly, defendant’s argument that there are inconsistencies between the versions of the accident presented by claimant and Mr. Perdikakis is not persuasive. First, there is no basis to characterize Mr. Perdikakis’ affidavit as “self-serving”, as does counsel for the defendant. He is not a party to the action, there is no evidence of collusion or other suggestion on this record that what he attests to is not to be credited, nor do whatever discrepancies there are raise a meaningful credibility issue sufficient to defeat summary judgment. Second, in terms of the accident descriptions offered by the only two witnesses to it, Mr. Vrettos and Mr. Perdikakis, they are not inconsistent as to material facts in any event. Both indicate there was no safety equipment such as harnesses[4], there was no guardrail on the building side of the scaffold, and that as they lifted the lintel, the scaffold swayed out, and claimant fell through the gap. The mechanics of the accident as described by each witness is the same. Whether they placed the lintel on the scaffold first, or the gap opened up twice, whether there was a ladder placed at ground level at one location or another to get on and off the scaffold, are simply not material issues of fact sufficient to defeat summary judgment. The risk of injury - and the concomitant imposition of liability - arose when they were maneuvering the heavy lintel on a swaying scaffold without safety equipment.

In a similar vein, the fact that while claimant fell Mr. Perdikakis may not have fallen is not a significant triable issue as argued by defendant, nor is any alleged conversation between Mr. Perdikakis and claimant at the hospital, in which Mr. Perdikakis allegedly told claimant - as reported by claimant at his deposition - that the scaffold opened up but did not tell claimant how or what caused the scaffolding to open up.

The fluid legal issue presented by these facts relates to when it will be determined as a matter of law that safety equipment was on-site, adequately explained and offered, and perhaps refused. Thus in Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35 (2004), the Court of Appeals found that a triable issue of fact existed as to whether the worker knew that adequate safety devices were available but chose not to use them. In that case, however, there was detailed evidence on the motion of exactly what equipment was available, how it was to be used, the fact of worker instruction including frequent safety talks and the injured plaintiff’s attendance at same; and information that the injured plaintiff had been seen not using a safety line on a previous occasion, leading to specific, one-on-one instruction of the use of safety equipment. There was specific information concerning the day of the accident to the effect that the injured plaintiff ran out of some material, went down to the ground to obtain more, and then chose not to use an available safety line to ascend, but instead used a safety hook in his harness - intended to keep him in position once he had reached his working place - as a means of ascending by repeatedly hooking and then un-hooking his way up the form. The Court of Appeals said:
“The controlling question . . . is not whether plaintiff was ‘recalcitrant,’ but whether a jury could have found that his own conduct, rather than any violation of Labor Law §240(1), was the sole proximate cause of his accident . . . Here, a jury could have found that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured. Those factual findings would lead to the conclusion that defendant has no liability under Labor Law §240(1), and therefore summary judgment should not have been granted in plaintiff’s favor.” Cahill v Triborough Bridge and Tunnel Auth., supra, at 39-40.[5]

See also
Yedynak v Citnalta Construction Corp., 22 AD3d 840, 841 (2d Dept 2005)[6]; cf. Pichardo v Aurora Contractors, Inc., 29 AD3d 879 (2d Dept 2006).[7]

“The mere presence of ladders or safety belts somewhere at the worksite does not establish ‘proper protection,’ leaving for . . . [the fact finder] only the question whether the absence of safety devices was a proximate cause of the plaintiff’s injury . . . (citation omitted).” Zimmer v Chemung County Performing Arts, Inc., supra at 524; see also Bland v Manocherian, supra at 461; Lickers v State of New York, 118 AD2d 331, 334 (4th Dept 1986); Koumianos v State of New York, 141 AD2d 189, 192 (3d Dept 1988). Indeed, it has been found as a matter of law that providing a scaffold alone, when additional equipment may be necessary to make it safe, such as when it lacks an inside safety rail, does not insulate an owner from liability under this statute. See e.g. Smizaski v 784 Park Avenue Realty, Inc., 264 AD2d 364, 365 (1st Dept 1999), modified,___AD2d___, 715 NYS2d 631; see also Morrison v City of New York, 306 AD2d 86 (1st Dept 2003).

A recent decision from the Second Department modified the trial court’s denial of cross-motions for summary judgment, to provide in part that with respect to the plaintiff’s Labor Law §240(1) cause of action a triable issue of fact was presented “. . . as to whether or not such safety devices were available and/or adequate and, if so, whether the plaintiff disregarded the safety devices made available to him.” Garlow v Chappaqua Central School District, 38 AD3d 712 (2d Dept 2007). From the very limited facts presented it appears that there was some showing that at the time of his 16-foot fall from the top of a concrete wall the plaintiff there was wearing an employer provided safety harness and lanyard, which was not “tied off.” The triable issue is set forth as follows: “The plaintiff claims he did not tie off the lanyard because there were no safety cables or safety lines nearby where he could attach the safety equipment, while the defendants argue that the plaintiff should have asked the safety crew to install a safety cable.” Presumably, the court had some other indicia that equipment was available or explained, not readily discernable from the factual recitation.[8] Otherwise, this decision seems distinguishable from other case law to the effect that an employer’s simple declaration that safety equipment is available on site, without more, does not raise triable issues. See e.g. Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461 (2d Dept 2005); see Zimmer v Chemung County Performing Arts, Inc., supra at 524; see also Bland v Manocherian, supra at 461.

For example, in Palacios v Lake Carmel Fire Dept., Inc., supra, the Appellate Division reversed summary judgment in favor of the injured worker. Although plaintiff there had made a prima facie showing of entitlement to judgment under Labor Law §240(1), defendant raised a triable issue of fact regarding availability of safety devices. The court said:
“. . . it is not enough to defeat liability to show ‘the mere presence of alleged safety devices somewhere on the job site [citations omitted], nor the mere fact that generalized safety instructions were given at some point in the past’. . . (citation omitted). Here, the defendant’s proof consisted of deposition testimony that the plaintiff was instructed to use a scaffold rather than a ladder, that the plaintiff used the scaffold to perform the same work on a different section of the building on the previous workday, and that the scaffold was located within the building where the plaintiff was cutting the materials he was installing.” Palacios v Lake Carmel Fire Dept., Inc., supra at 463. See also Aguilar v New York City Housing Auth., 8 Misc 3d 1011 (A) (unreported disposition) (Sup Ct, NY County, 2005).
Based on the foregoing, claimant has established without material contradiction that he was engaged in the repair of a structure owned by the State of New York, as an employee of a contractor hired by the State to perform an emergency repair, that the repair work claimant was doing involved an elevation related risk, that no safety equipment other than an unsecured scaffold was supplied for claimant’s use on the day of the accident, and that his accident and resulting injuries occurred because of an elevation related risk, and such injuries were proximately caused by the failure to provide adequate safety equipment.

Accordingly, claimant’s motion for partial summary judgment on the issue of liability under Labor Law §240(1) is in all respects granted.

Let interlocutory judgment be entered accordingly. Trial on the issue of damages shall be scheduled as soon as is practicable.

April 2, 2007
White Plains, New York

Judge of the Court of Claims

[1]. In prior motion practice the date set forth in the claim was changed from September 16, 2003 to September 15, 2003. See Vrettos v State of New York, Claim No. 108900, Motion No. M-70985, UID #2006-030-513 (Scuccimarra, J., signed February 9, 2006).
[2].“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . .(citations omitted).”
[3]. Plaintiff’s motion for partial summary judgment denied because there was conflicting evidence as to whether a safety device was provided to the plaintiff and whether the plaintiff refused to use the safety device. From the limited facts recited therein, in opposition to the plaintiff’s motion, defendant provided a foreman’s affidavit wherein the foreman alleged that a safety belt had been provided, that it was stored at the end of each day with the plaintiff’s work-clothes at the worksite; that the plaintiff had been instructed at weekly safety meetings on how to use the device, that plaintiff had always previously used the belt, and that it was available on the day of the accident.
[4]. When Mr. Vrettos was asked about safety equipment, he said he was given nothing in an early part of his deposition, [Exhibit F, pp.24 and 29], he remembered working with a safety harness on one other job in Washington, D.C. , [Ibid. p.30] and then responded when asked again whether he was given any safety belt or safety harness “[n]o, nothing.” [Id.]. He was asked: “Did you ask Manoli [Perdikakis] for any safety harness?” and responded: “He knows his job, he should have given me one. What can I say.”[Id.]. Given the follow-up question “My question is you did not ask him for one?” , Mr. Vrettos responded: “I thought it was upstairs and I would have gotten it there. He didn’t give me any.” [Ibid. p.31]. These queries elicited responses from claimant that are equivocal at best.
[5]. Three years later cross-motions for summary judgment were modified to the extent that defendant’s motion was granted, and that no triable issues of fact existed, the Second Department finding that the defendants had established prima facie that the worker painting the Verrazano Bridge who fell 13 feet was “...provided with a safety harness and a lanyard, that he was present for several safety meetings at which he was instructed in the use of the harness, that he was instructed to tie-off the harness at all times while using the scissor lift, and that the plaintiff intentionally unhooked his harness and climbed on the railing of the scissor lift, in direct violation of these instructions . . . Moreover, the affidavit of one of the plaintiff’s supervisors further demonstrated that the plaintiff was instructed to paint only those areas which he could safely reach. The plaintiffs failed to submit any evidence to contradict this . . . [and] defendants thus established that the plaintiff’s conduct was the sole proximate cause of his injuries . . . (citations omitted).” Leniar v Metropolitan Transit Authority, 37AD3d 425, 426(2d Dept 2007).
[6]. Summary judgment in favor of defendant. Sole proximate cause of fall was worker’s own conduct in failing to use available safety equipment. Plaintiff testified at deposition that he was provided with a safety harness, instructed in the proper use of the harness, and directed by his supervisors to use it at all times while on the roof or scaffolding. There was evidence that the safety line was available near where plaintiff fell, and that a harness would have prevented his fall. Plaintiff had further testified that although everyone usually wore a safety harness, it was near the end of the day and they were getting ready to go home.
[7].Defendant did not raise triable issue of fact sufficient to rebut plaintiff’s prima facie showing of entitlement to judgment as a matter of law by defendant’s’ failure to provide proper protection for the work being performed, and that this failure was a proximate cause of the accident. Plaintiff injured when performing waterproofing work from an extension ladder, that he and another worker - his supervisor - had disassembled. Lower portion of ladder he was using slipped away from wall because there was no securing device at the top, and he fell to his injury. Defendant’s argument that the “misuse” of the ladder was the sole proximate cause of accident rejected. Manner of work performed consistent with his supervisor’s instructions.
[8].Indeed, this would seem to impose a requirement on a plaintiff to ascertain whether the mechanisms for the proper installation of safety equipment - such as a lanyard - is available, and is not readily reconciled with the intent of the statute. The equipment, and all its appurtenant attaching devices, should be provided and explained under a plain reading of the statute and the attendant case law.