Labor Law 240: Weitzel v. State of New York (N.Y. Sup. Ct., Erie Co.)

June 21, 2017

by Richard C. Brister, Esq.


In Weitzel, plaintiff was allegedly injured in the course of his employment at a highway construction project to renovate a bridge on the Thruway in Hamburg, New York.  The construction area was contained within a heavy-duty tarp system, or containment area.  On the date of the accident, plaintiff allegedly walked into the containment area wearing a safety harness, but once inside the containment area and hidden from view, removed the safety harness before climbing to a height (i.e., onto a 2’ aluminum plank placed between the bridge pier and the wing of a v-deck truck set up under the bridge), and then began work blasting the bridge framework.  It was allegedly during this blasting work performed without a safety harness that plaintiff fell approximately 15 feet and sustained injuries.


Plaintiff’s motion alleged the plank from which he fell was not set up properly because it was placed over a tarp and was not properly tied off.  Plaintiff also alleged defendants failed to provide safety railings on both sides of the plank as required by the Labor Law.  In opposition, defendants argued that plaintiff himself placed the plank on the tarp and tied it off.  Defendants also argued that if plaintiff had worn his safety harness and used available bridge clamps, there were numerous tie-off points available.  Defendants also provided expert and testimonial evidence that railings along the sides of the plank would have rendered the work practically impossible and more dangerous.  Defendants also argued that plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and that plaintiff was a recalcitrant worker because he removed the safety harness without explanation and despite being told numerous times to wear it.  Defendants argued that the court must take defendants’ evidence as true and indulge all reasonable inferences in their favor as non-movants.


On January 12, 2017, the Court denied plaintiff’s motion for summary judgment under Labor Law section 240.  The Court found issues of fact as to (1) whether plaintiff’s conduct in removing the safety harness was the sole proximate cause of the accident, and (2) whether plaintiff was a recalcitrant worker.