Plaintiffs in this negligence action, seeks damages for personal injury sustained by Plaintiff on September 2, 2008, in a scaffolding collapse accident while he was working as a mason tender for JOFW.
The accident occurred inside premises near Brush Avenue next to the Bronx toll plaza of the Bronx-Whitestone Bridge. On the date in question, plaintiff was working on a scaffold over ten (10) feet above the ground when the scaffold plank, upon which plaintiff stood, broke in two causing plaintiff to fall to the ground below. Pursuant to the Verified Bill of Particulars, plaintiff sustained a traumatic brain injury, neuropsychological impairment secondary to cerebral dysfunction, severe post traumatic hydrocephalus requiring shunt, and numerous other brain-related injury.
A Bronx County Injury lawyer said that plaintiff also alleges neck, back and right knee injury. Defendants were the owner of the project and general contractor hired.
On a claim pursuant to Labor Law § 240 (1), a claimant must prove both that the statute was violated and that the violation was a proximate cause of his injuries. Here, the undisputed record indicates that the scaffold, upon which plaintiff was standing, broke and collapsed causing plaintiff to fall. “Proof of a collapse of a safety device constitutes a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker’s injuries”, thereby establishing the claimant’s entitlement to judgment as a matter of law on the issue of liabilit. No evidence was submitted which rebuts this prima facie showing.
Contrary to the contention of defendants, they failed to raise a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of the accident. Defendants are required to present “some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of… his injuries”. Defendant’s contention that plaintiff fell because he did not properly place his feet on the scaffold is based upon mere conjecture and thus is insufficient to defeat plaintiff’s motion. Because plaintiff established that a statutory violation was a proximate cause of his injury, he “cannot be solely to blame for it”. Furthermore, the court is also not persuaded by defendant’s contention that had the plaintiff used a second plank, it would have blocked the area where plaintiff fell. The record reveals that the plank broke in half, or collapsed and thus the presence of a second plank to block the area where plaintiff fell is irrelevant under the instant circumstances. Accordingly, plaintiff’s motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1), is granted.
To Be Cont…
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