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WHETHER PLAINTIFF USED ONE OR BOTH HANDS TO MANIPULATE A HOSE WHILE STANDING ON A LADDER WHICH COLLAPSED OR SLIPPED WAS RELEVANT ONLY TO COMPARATIVE NEGLIGENCE, WHICH IS NOT A BAR TO RECOVERY PURSUANT TO LABOR LAW 240 (1) (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an A-frame ladder which collapsed, slipped or otherwise failed to support him. Plaintiff was using a hose to insert insulation and was supposed to keep one hand on the ladder at all times. Defendant argued plaintiff demonstrated at his deposition that he had both hands on the hose. The majority held, even if plaintiff used both hands to manipulate the hose, that would constitute comparative negligence which is not a bar to recovery:

… [D]efendant relied upon plaintiff’s deposition testimony, in which he averred that he chose a wooden, A-frame ladder, which he described as “sturdy,” and placed so it was steady and free from “wiggling.” Plaintiff testified that, while standing on the steps of the ladder, he maintained a three-point safety stance, with his feet and one arm in contact with the ladder, and his other hand holding the hose that fed the insulation into the building’s overhang. Plaintiff indicated that the ladder began to move forward, causing him to fall and sustain injuries. Defendant argued that this testimony established that the ladder “was adequate and properly placed” … , and that the testimony about plaintiff keeping one hand in contact with the ladder contradicted gestures he made during the deposition, where he seemed to indicate that “both [of his] hands [were] cupped around an imaginary hose,” thus posing issues of fact.

As Supreme Court found, the deposition testimony is not clear as to whether plaintiff maintained the three-point safety stance while on the ladder. Nonetheless, even if this disputed issue was resolved against plaintiff, this would merely present a factual question as to his potential comparative negligence, which “does not relieve defendant[] of liability under Labor Law § 240 (1)” … . Bennett v Savage, 2021 NY Slip Op 01306, Third Dept 3-4-21

 

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