Does Failure to Provide Safety Device Against Elevation Related Risk Constitute Breach of Duty Imposed by Labor Law ?

In Dasilva v. A.J. Contracting Co. (262 A.D.2d 214, 694 N.Y.S.2d 353 [1st Dept. 1999]), defendants were held liable under scaffold law for injuries sustained by worker when he fell from unsecured ladder on which he was standing when it was struck by section of pipe he had cut; plaintiff's actions in cutting the pipe were found not to be the sole proximate cause of his injuries. The same reasoning was applied in Dunn v. Consolidated Edison Co. of New York, Inc. (272 A.D.2d 129, 707 N.Y.S.2d 420 [1st Dept. 2000]), in which the court held: Plaintiff, a boiler maker, was injured while removing a blank flange during the renovation of one of defendant's plants. The flange fell, shifting the steel grating on the floor on which plaintiffs A-frame ladder was positioned, and then struck the ladder, both of which actions of the flange caused the ladder to become unsteady, resulting in plaintiffs fall and injury. It is plain that the ladder used by plaintiff was not an adequate safety device for the task plaintiff had been directed to perform, entailing work at a significant elevation removing heavy pipe components. Defendant's failure to furnish a safety device sufficient to protect plaintiff against the elevation-related risk posed by the assigned work constituted a breach of the duty imposed by Labor Law 240(1) (See, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912; compare, Weber v. 1111 Park Ave. Realty Corp., 253 253 A.D.2d 376, 676 N.Y.S.2d 174), and regardless of the propriety of the method plaintiff utilized in removing the flange, that failure "was a substantial cause of the events which produced the injury" (Gordon v. Eastern Ry. Supply, supra, at 562, 606 N.Y.S.2d 127, 626 N.E.2d 912, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).