Appellate Division, First Department Split on Sole Proximate Cause Issue Within Labor Law sec. 240(1) Context

In Miro v. Plaza Constr. Corp., the plaintiff injured himself after he slipped off a ladder that was partially covered with sprayed-on fireproofing material.  He alleged that the fireproofing material caused him to lose his footing.  He claimed that he complained about the ladder's condition to the  building's superintendent, but the superintendent just shrugged.  At his deposition, the plaintiff testified that if a ladder was "in bad shape, they (i.e., his employer, Consolidated Electric) get rid of it and get you a new one"; that Consolidated Electric was "pretty good" about doing this; that workers would report a problem with a ladder to Consolidated Electric's "stockroom," which would send a replacement ladder to the job site; and - contrary to the dissent's assertion that "there is no proof in this record that any replacement ladder was available on site" - that Consolidated Electric had "a lot of ladders" available for use on its projects. The plaintiff also testified that "[i]f the journeyman sees a ladder, if it's in bad shape, he won't use it."

Relying on the Court of Appeals' decisions in Robinson v. E. Med. Ctr. LP and Cahill v. Triborough Bridge & Tunnel Auth., the Majority for the Appellate Division, First Department held that the plaintiff's choice of using the ladder even though he knew he could get a safer one was the sole proximate cause of his accident.  The Majority also rejected the Dissenting Justice's interpretation of the Robinson holding that it required alternate safety equipment to be on site.  The Majority held that Robinson merely held that the alternate safety equipment need be readily available.

It will be interesting to see if  this issue on this appeal makes it to the New York Court of Appeals.  In the face of a lot of recent Court of Appeals decisions on the issue, the parties might be stuck with the First Department duking this one out.

Comments

[Bill Altreuter]

240 jurisprudence is hopeless-- there really doesn't seem to be any way to predict how a particular appellate panel will come out on any given set of facts. I will concede that the statute is important, and will stipulate further that turning the New York State Legislature loose on it would be a bad idea-- but certainly something ought to be done about the way these cases are analyzed. The standard now seems to be along the lines of, "Labor Law claims are like snowflakes...."

[Thomas Swartz]

Agreed - 240 is a nightmare. The problem has always been imposing liability against owners. How is an owner supposed to know what type of safety equipment is supposed to be on site for a particular type of job? Shifting liability to those without the appropriate expertise places fault where the fault does not truly rest.