Failure to Instruct the Jury on the Sole Proximate Cause Defense Required Reversal of Plaintiff’s Verdict

The Fourth Department, over a dissent, reversed the judgment for the plaintiff and ordered a new trial finding that the trial judge should have instructed the jury on the sole proximate cause defense.  The plaintiff used a wobbly ladder while painting and fell. The trial judge felt that the sole proximate cause defense (i.e., that the plaintiff’s acts or omissions were the sole proximate cause of the accident) would have been triggered only if the plaintiff ignored an instruction to use a different ladder. The Fourth Department explained that the defense could also be triggered if the plaintiff knew he had other options available but chose to use the wobbly ladder:

…[T]he court held that plaintiff’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive. That was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device. Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it … . * * *

As the Court of Appeals held …, in order for there to be liability under section 240 (1), “the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” … . Piotrowski v McGuire Manor Inc, 2014 NY Slip Op 03045, 4th Dept 5-2-14