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PLAINTIFF PLACED THE BOTTOM OF THE LADDER ON SMALL LANDSCAPING ROCKS WHICH GAVE WAY CAUSING PLAINTIFF TO FALL; DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF’S ACTION WAS THE SOLE PROXIMATE CAUSE OF HIS FALL AND CONTRIBUTORY NEGLIGENCE IS NOT A DEFENSE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240(1) action should not have been granted on the ground plaintiff’s actions were the sole proximate cause of the ladder-fall. Plaintiff had placed the bottom of the ladder on top of small “landscaping” rocks and fell when the rocks gave way:

A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she “(1) ‘had adequate safety devices available,’ (2) ‘knew both that’ the safety devices ‘were available and that [he or she was] expected to use them,’ (3) ‘chose for no good reason not to do so,’ and (4) would not have been injured had [he or she] ‘not made that choice'” … .

Here, UNF and Protection One [defendants] failed to establish, prima facie, that the plaintiff’s actions were the sole proximate cause of his injuries … . Although the plaintiff testified at his deposition that he could have placed the ladder in the driveway, where it would not have been resting on the rocks, he further testified that “it wasn’t safe for me to place it there, because that’s where trucks drive in.” Further, UNF and Protection One failed to submit evidence that the plaintiff’s injuries could have been prevented if the plaintiff had secured the ladder to the light pole with ties, which were available at Protection One’s depot, not the job site … . Iannaccone v United Natural Foods, Inc., 2023 NY Slip Op 04372, Second Dept 8-23-23

Practice Point: In a ladder-fall Labor Law 240(1) action, the defendant’s placing the ladder on small landscaping rocks which gave way was not deemed to be the sole proximate cause of the accident. Contributory negligence is not considered. Therefore defendants’ summary judgment motion should not have been granted.

 

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