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SUPREME COURT PROPERLY DISMISSED DEFENDANTS’ SOLE-PROXIMATE-CAUSE AFFIRMATIVE DEFENSE IN THIS LABOR LAW 240(1) LADDER-FALL CASE; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment dismissing defendants’ sole-proximate-cause affirmative defense to the Labor Law 240(1) cause of action. Plaintiff used an eight-foot A-frame ladder to work on an overhead door mechanism and stood on the second to the highest step. The dissenters argued there was a question of fact whether the plaintiff’s own negligence (standing on the second to the highest step) was the sole proximate cause of the fall. The majority found Supreme Court properly dismissed the sole-proximate-cause affirmative defense. Plaintiff submitted expert evidence that the eight-foot ladder was not an adequate safety device. And plaintiff’s standing on the second to the highest step spoke to comparative negligence, which is not a defense to a Labor Law 240(1) cause of action. With respect to plaintiff’s motion for summary judgment on liability, Supreme Court properly held there was a question of fact whether plaintiff was performing routine maintenance, which is not covered under Labor Law 240(1):

… [T]here is no evidence in the record that contradicts the opinion of plaintiff’s expert that the eight-foot A-frame ladder provided to plaintiff was inadequate because it could not have been placed so as to provide proper protection to plaintiff during his work on the bearing and shaft of the car wash overhead door at the time of the accident (see generally Labor Law § 240 [1]). Plaintiff therefore established his entitlement to judgment as a matter of law dismissing the sole proximate cause affirmative defense; any failure by plaintiff to refrain from standing on the top steps of the ladder amounts to no more than comparative negligence, which is not a defense under Labor Law § 240 (1) … . * * *

From the dissent:

Inasmuch as unnecessarily standing on the second step from the top of an A-frame ladder constitutes misuse of such a ladder, and plaintiff was depicted standing on the ladder in that manner just before the fall, we conclude that plaintiff’s submissions raised an issue of fact whether it was necessary for plaintiff to be on that step in order to perform his work on the 10-foot overhead door and, if not, whether plaintiff’s own actions were the sole proximate cause of the accident … . Green v Evergreen Family Ltd. Partnership, 2022 NY Slip Op 06588, Fourth Dept 11-18-22

Practice Point: Here the majority concluded the A-frame ladder was inadequate for the job and plaintiff’s standing on the second to the highest step amounted to comparative negligence, which is not a defense to a Labor Law 240(1) cause of action. Two dissenters argued there was a question of fact whether standing on the second to the highest step constituted plaintiff’s misuse of the ladder which was the sole proximate cause of the fall.

 

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