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ALTHOUGH THERE WAS EVIDENCE PLAINTIFF’S USE OF A LADDER INSTEAD OF THE SCISSORS LIFT CREATED THE SAFETY ISSUE LEADING TO PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, THERE WAS EVIDENCE THE OPERATOR OF THE SCISSORS LIFT WOULD NOT ALLOW PLAINTIFF TO ACCESS IT, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S USE OF A LADDER WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THERE WAS A SUBSTANTIAL DISSENT (FOURTH DEPT).

The Fourth Department, over a substantial dissent, determined plaintiff’s Labor Law 240(1) action should have survived summary judgment. Plaintiff fell from a ladder attempting to pass sheet rock to another worker on a scissors lift. The dissent argued plaintiff should have used the scissors lift and therefore was the sole proximate cause of the fall. There was evidence the operator of the scissors lift refused to reposition it to allow plaintiff to access it, and, therefore, plaintiff’s use of the ladder was not the sole proximate case of his fall:

With respect to the Labor Law § 240 (1) claim, we conclude that defendants did not meet their initial burden of establishing as a matter of law that plaintiff was the sole proximate cause of the accident … . … [D]efendants established that the coworker, who was operating and standing in the scissor lift at the time of the accident, denied plaintiff’s request for access to the device by refusing to reposition it to allow plaintiff to safely lift the sheetrock into place. We note that “[i]t is well established that there may be more than one proximate cause of an injury” … , and that “[q]uestions concerning . . . proximate cause are generally questions for the jury” … .

Our dissenting colleague argues that the court properly concluded that, as a matter of law, plaintiff was the sole proximate cause of the accident because he chose to use the ladder instead of the scissor lift. The court’s conclusion was based on plaintiff’s deposition testimony admitting that use of the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. We disagree with the dissent’s conclusion. Although plaintiff testified that the scissor lift was the proper device to use for his work, that statement alone does not, under the unique circumstances of this case, establish that plaintiff knew that the scissor lift was “available” and “chose for no good reason” not to use it … . Further, “[w]here causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts” … and, here, in light of the coworker’s alleged conduct, the evidence is not conclusive about whether plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Thomas v North Country Family Health Ctr., Inc., 2022 NY Slip Op 04836, Fourth Dept 8-4-22

Practice Point: Apparently use of a scissors lift, not a ladder, was the appropriate method for the work. Plaintiff fell from a ladder attempting to do the work. There was evidence the operator of the scissors lift would not allow plaintiff to access it. Therefore plaintiff’s use of the ladder may not have been the sole proximate cause of the fall and the defense motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted. There was a substantial dissent.

 

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