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DEFENDANT IN THIS LADDER-FALL CASE RAISED A QUESTION OF FACT WHETHER PLAINTIFF MISSED A STEP AND WAS THEREFORE THE SOLE PROXIMATE CAUSE OF THE FALL; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department determined defendant in this ladder-fall case raised a question of fact whether plaintiff was the sole proximate cause of his fall. The two-justice dissent disagreed:

We conclude that plaintiff met his initial burden on the motion of establishing that the ladder was “not so placed . . . as to give proper protection to [him]” through evidence that plaintiff fell when the ladder suddenly and unexpectedly shifted … . The burden then shifted to defendant to raise a triable issue of fact whether plaintiff’s “own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of [his] accident”… . We conclude that defendant met that burden through evidence suggesting that plaintiff fell from the ladder because he missed a step while descending, not because the ladder shifted or otherwise failed … .

From the dissent:

… [E]ven if there was non-hearsay evidence that plaintiff mis-stepped and missed a rung while descending the ladder, defendant still does not raise a triable question of fact with respect to proximate cause. “It is well settled that [the] failure to properly secure a ladder to insure that it remains steady and erect while being used, constitutes a violation of Labor Law § 240 (1)” … and, here, defendant does not dispute plaintiff’s allegations that defendant failed to properly erect, secure or place the ladder to prevent it from shifting. Missing a rung while descending the ladder is not an act of “such an extraordinary nature or so attenuated from the statutory violation as to constitute a cause sufficient to relieve [defendant] of liability” … . Krause v Industry Matrix, LLC, 2024 NY Slip Op 02653, Fourth Dept 5-10-24

Practice Point: Here evidence plaintiff “missed a step’ raised a question of fact whether plaintiff was the sole proximate cause of his fall from a ladder.

 

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