Background
Imberson Veliu worked for De-Bar Company Construction Corporation as a foreman and “pitman” on a Verizon New York project to install underground cable pipes. A pitman works in an excavation near the backhoe and directs its operator, whose view beneath the bucket is obstructed. Veliu said he was standing in a trench three to four feet deep when a heavy concrete curb section, which had been lifted several feet in the backhoe bucket, rolled out and struck his leg. He sought summary judgment against Verizon under Labor Law § 240(1), New York’s Scaffold Law, which imposes a nondelegable duty on owners and contractors to provide proper protection against elevation-related construction risks.
A coworker gave a materially different account. He said the backhoe had not hoisted an unsecured curb section. Instead, a piece of concrete overlay detached from the curb and sidewalk during excavation, slid into the trench, and hit Veliu. De-Bar’s co-owner added that Veliu was responsible for pit safety, had directed coworkers to brace other parts of the trench, and knew that additional lumber was available to brace the area near the curb. Supreme Court granted Veliu summary judgment, reasoning that under either account an absent or inadequate safety device caused the injury. Verizon appealed.
The Court’s Holding
A divided First Department reversed and denied Veliu’s motion. The majority first held that the competing descriptions of the accident created a credibility question for the factfinder. On Veliu’s version, a hoisted object was not properly secured. On the coworker’s version, concrete separated from the excavation edge and slid into an inadequately braced trench. Although Labor Law § 240(1) can cover a falling object caused by absent trench shoring, the accounts did not necessarily present the same statutory violation or resolve causation as a matter of law.
The majority also found a factual dispute over sole proximate cause. That defense applies when an adequate safety device was readily available, the worker knew he was expected to use it, and he chose not to do so for no good reason. The co-owner’s affidavit said Veliu was responsible for pit safety, had already directed use of lumber braces elsewhere, and knew more braces were on site. Veliu’s reply did not contradict those points. The majority stressed that Veliu’s title as foreman or pitman alone did not defeat his claim; the unresolved question was whether his knowing failure to use available bracing was the only cause of the accident.
Justice Manuel J. Rodriguez, joined by Justice Marsha D. Michael Pitt-Burke, dissented. The dissent viewed both factual versions as involving a statutory failure: either an unsecured hoisted object or a 100-to-150-pound curb section falling into an unbraced trench. It reasoned that assigning Veliu responsibility for constructing his own protection amounted at most to comparative negligence, which is not a defense when a Scaffold Law violation contributes to an accident. The majority and dissent agreed that a trench at least two feet deep could create a nontrivial elevation differential.
Key Takeaways
- Conflicting accident accounts can defeat a worker’s Scaffold Law summary-judgment motion when they change the causation and safety-device analysis.
- A sole-proximate-cause defense needs evidence that a suitable device was available and that the worker knew he was expected to use it but did not.
- Falling material associated with an inadequately braced trench may fall within Labor Law § 240(1), even when the vertical distance is only a few feet.
Why It Matters
Veliu gives New York construction litigators a sharp example of how factual detail controls Scaffold Law motions. Owners and contractors cannot rely merely on a worker’s supervisory title, because the statutory duty remains nondelegable. But evidence about the worker’s actual safety assignment, prior use of the device, knowledge of additional equipment, and conduct at the precise location can create a triable sole-proximate-cause issue.
For plaintiffs, early witness statements should lock down whether an object was being hoisted, fell because the excavation gave way, or moved in some other manner. For defendants and insurers, site photographs, bracing plans, daily logs, equipment inventories, and testimony about specific safety instructions may determine whether the record presents ordinary comparative negligence or the narrower sole-proximate-cause defense. The dissent also signals that trial courts will continue to scrutinize attempts to shift an owner’s protective obligation onto the injured worker.
The ruling does not hold that Verizon escapes liability. It holds only that Veliu was not entitled to judgment before a factfinder resolves how the concrete moved and what he knew about the available bracing. At trial, the parties will need to connect those facts to the particular gravity-related risk and show whether a statutory violation contributed to the injury. That distinction matters because once a violation is a proximate cause, a worker’s comparative fault will not reduce the owner’s § 240(1) liability.