Velasco v. Green-Wood Cemetery

This case demonstrates that owners and contractors can be liable for a plaintiff’s poor judgment under New York’s Labor Law even if the non-defective safety device is provided.

In this case, the plaintiff fell off a laddr that he set up in soil and used even though he knew that his co-worker was not holding it. The Appellate Division, First Department rejected the defendants’ argument that the Labor Law Section 240(1) claim did not lie because they had provided him with a ladder that was not defective. Relying on its interpretation of Blake v. Neighborhood Hous. Servs., the Court concluded that the defendants’ argument overlooked that the plaintiff provided evidence that the defendants did not provide him with other safety devices to protect him in event the ladder slipped.

Perhaps in this case the defendants could have provided the plaintiff a safety line attached to the building; however, in some cases, the only safety device that can be provided is a nondefective ladder. Such a general rule basically puts contractors and owners in the role of insurers even where the plaintiff uses bad judgment — that is, climbing a ladder that is placed on a noticeably uneven surface or one that is not held by a coworker.

The case is also important because it provides another factual scenario to demonstrate how courts will define “alteration” under the statute as opposed to routine maintenance. The Court noted that the plaintiff’s employer was hired to perform replace loose and broken slate roof tile, clean gutters, install new copper flashing, and repair a roof leak.