Appellate Division, First Department grants partial summary judgment under Labor Law 240 to Plaintiff in circumstantial evidence fall scenario

In Angamarca v Encolada, 2008 NY Slip Op 08414 (1st Dep't November 6, 2008), the Appellate Division, First Department held that in a situation where the plaintiff had no recollection of how he fell, that circumstantial evidence was sufficient to make a prima facie case that Labor Law 240 was violated, and that the defendants failed to raise a triable issue of fact, justifying partial summary judgment in favor of the plaintiff.

Specifically, the court held that:

"Although no one witnessed the fall, and the injured worker had no recollection of what happened, there was strong circumstantial evidence ( see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550 [1998] ) that [the plaintiff] probably fell through an improperly covered skylight hole in the roof. Just prior to the fall, Angamarca and a coworker were on the roof near the opening. There were only three pieces of plywood at the scene, two of which covered the two openings in the roof. More wood had been requested, and was being sent up by lift.

Deposition testimony indicated that the holes were generally covered by plywood sheets nailed on, but it was not unusual for the plywood to be removed from the openings. The principal of Angamarca's employer was told that the injured party had fallen through the skylight, and another individual testified that he came upon the injured worker lying on some plywood. Defendants asserted that Angamarca was likely the sole proximate cause of his injuries, and suggested that he toppled off the nearby lift, rather than falling through an opening in the roof. However, there was no evidence that Angamarca had been seen on the lift prior to the accident, or even that the lift was on the roof at the time. Angamarca further submitted an expert affidavit stating that the nature of his injuries was consistent with having fallen through the skylight opening, rather than from the lift.

Under these circumstances, defendants have not established the existence of a triable issue of fact. Angamarca produced admissible prima facie evidence he was injured after a fall through the skylight opening and had not been provided with any safety device or equipment to afford him proper protection from such an elevation-related hazard, thereby entitling him to summary judgment as to liability on his claim under Labor Law § 240(1) ( see Figueiredo v New Palace Painters Supply Co. Inc., 39 AD3d 363 [2007] ). In opposition, defendants offered only unsupported speculation as to an alternative explanation for the injury."

The New York Civil Pattern Jury Instruction charge at PJI 1:70 instructs, in part, that circumstantial evidence may be given less weight, more weight, or the same weight as direct evidence by the jury, meaning that circumstantial evidence, in a summary judgment scenario, can create a prima facie case. The above referenced decision makes this clear.