Question of Fact About Whether Plaintiff’s Actions Were Sole Proximate Cause of Fall—Plaintiff Was Using Stilts for Ceiling Work

The Fourth Department, over a two-justice dissent, determined there was a question of fact concerning whether plaintiff’s actions were the sole proximate cause of his fall.  Plaintiff was using stilts to do ceiling work and slipped on ice:

…[W]e conclude that there is a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. Although plaintiff met his initial burden on the motion …, defendants raised a triable issue of fact by introducing evidence that he was directed not to work in the area where the ice was located.    Thus, “ ‘[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries’ ” … .  Nicometi v The Vineyards of Fredonia, Inc, 519, 4th Dept, 6-14-13