A recent decision from New York’s Appellate Division, Third Department, highlights a vulnerability in the state’s antiquated and draconian Scaffold Law (Labor Law Sections 240 and 241), which imposes absolute liability on owners and general contractors in accidents involving falls on construction sites. On December 4, the Third Department decided Nalepa v. S. Hill Bus. Campus, LLC, 2014 NY Slip Op 08528 (App. Div.), a case in which the plaintiff was working in the bathroom while his co-worker was working in the ceiling above. The co-worker asked for help and the plaintiff ascended a 10-foot wooden, folding A-frame ladder that he found leaning against the bathroom wall. As he climbed the ladder, it kicked out, causing him to fall to the ground and sustain injuries.
The court found the plaintiff’s actions were the sole proximate cause of his injuries and, therefore, liability under Labor Law §240(1) does not attach. The proof showed that the ladder was in good working order, but was not designed to be used in the closed position and leaning against a wall. The plaintiff admitted that there was no reason why he failed to open the ladder, and that he was aware that using the ladder in the closed position was contrary to his safety training. The court concluded that the plaintiff’s failure to use the ladder in the open position constituted a misuse of the ladder, which was the sole proximate cause of his injuries. The court also rejected the argument that the defendant was at least partially at fault for having provided the ladder for the plaintiff’s use, by improperly placing it where the plaintiff found it, because there was no evidence that the defendant “deliberately placed the ladder in that location, leaning against the wall, for use in that position by the plaintiff or other workers.”
This decision offers a defense to the Scaffold Law where it can be shown that the plaintiff knew he was using the ladder in a manner contrary to his training, where the ladder was the proper device for the job had it been used in the manner it was designed, and where the device was in good working order. The fact that he found it leaning against the wall did not qualify as “placement” under the statute and, presumably, had the plaintiff moved the ladder to another location and “deliberately placed” it in the same fashion, he would still be the sole proximate cause of the accident.
The key to this type of defense is the ability to prove that the plaintiff had been properly trained. Here, the plaintiff admitted it, but the employer should also maintain records of the training provided to workers — and proof that the worker attended the training — to ensure the viability of this defense.
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