Since in the latter event the device was self-evidently not so built as to prevent such slips from turning into falls from a height, its inadequacy must have contributed to the fall. Plaintiff would then have prevailed on a summary judgment motion. In addition, it incorporates foreseeability, a negligence concept, into what had been a form of absolute liability based on the type of danger involved. If they fail to prevent an injury liability will attach, whether or not the devices in use met the general standard of care in the industry or the conduct of the employer was reasonable. There is a less theoretical problem with the Bernal case, as well.
Safety devices are present to save one when things go wrong.
Surely the carelessness of co-workers is one of the very dangers to be expected on a work site, and one of the major precipitating factors in construction accidents. Excluding recovery when a co-worker blunders is certainly a long way from the absolute liability once thought to be the hallmark of the Scaffold Law. Labor Law jurisprudence is currently in a state of flux. In the more parsimonious and defense-oriented nineties the relative certainty that seemed to follow the expansiveness of Zimmer and Bland has given way to a confusing variety of new qualifications, defenses, and doctrines. The author would like to thank Carol Finocchio, plaintiff's attorney before the Court of Appeals in Weininger , who graciously supplied a portion of her brief to verify the facts in that case.