Question of Fact Whether Plaintiff’s Conduct, Placing Ladder on Ice, Was Sole Proximate Cause of Injury

The Fourth Department determined there was a question of fact whether the plaintiff’s conduct constituted the sole proximate cause of his injury (re: the Labor Law 240 (1) cause of action).  Plaintiff placed his ladder on ice and was injured when the ladder slipped on the ice. The court explained the analytical criteria:

Liability under section 240 (1) “is contingent on a statutory violation and proximate cause” … . If both elements are established, “contributory negligence cannot defeat the plaintiff’s claim” … . There can be no liability under Labor Law § 240 (1), however, “when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … . It is therefore “conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … .

While we agree with plaintiffs that evidence that a ladder is “structurally sound and not defective is not relevant on the issue of whether it was properly placed” …, we conclude that there are triable issues of fact whether plaintiff’s actions were the sole proximate cause of his injuries … . * * *

In this case, we conclude that plaintiffs failed to meet their initial burden of establishing entitlement to partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action inasmuch as they submitted evidence raising a triable issue of fact whether plaintiff’s conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause of the accident … . Specifically, plaintiffs submitted deposition testimony from defendant’s customer, who purportedly owned the building on which plaintiff was working. The owner testified that, on the day of the accident, he advised plaintiff that the ladder was not placed in a safe position. The owner offered to retrieve safety equipment from his own truck that would help to remove ice from underneath the ladder and thereby stabilize the ladder. Plaintiff, however, rejected that offer. The owner also attempted to hold the ladder for plaintiff, but plaintiff again rejected the owner’s assistance. Fazekas v Time Warner Cable, Inc., 2015 NY Slip Op 07403, 4th Dept 10-9-15