Practice point: The Appellate Division found in the record triable issues of
fact as to how plaintiff's accident occurred, and, therefore, it cannot be
concluded, as a matter of law, that the alleged failure to provide him
with proper protection proximately caused his injuries. Plaintiff testified that he "fell backwards and the
ladder forward," and submitted an affidavit in which he stated that the
ladder suddenly went forward and he simultaneously fell backwards, and
that he did not become dizzy or lose his balance. However, plaintiff
also testified that he opened the ladder and locked it and checked that it
was sturdy; that he did not experience any problems with the ladder
while he was on it; that he did not remember how he fell off the ladder
or know why he fell; and that he did not feel the ladder move before
he fell. When asked if he remembered or knew if the ladder shook or
wobbled, plaintiff responded, "No."
In addition, plaintiff's employer
testified that he situated the ladder just before plaintiff's
fall, locked the braces and climbed it himself, and that when he went
back into the room after plaintiff fell, the ladder was in the same
place as before the accident and was not on the ground. He also testified that
plaintiff did not say that there was anything wrong with the ladder that
caused him to fall.
These contradictions raise credibility issues which
cannot be resolved on a motion for summary judgment.
Student note: To establish liability under Labor Law § 240(1), a plaintiff must prove a violation of the statute that was the proximate cause of the injury. A fall from a ladder does not, in and of itself, establish that the ladder did not provide appropriate protection.
Case: Campos v. 68 E. 86th St. Owners Corp., NY Slip Op 03747 (1st Dept. 2015)
Here is the decision.
Monday's issue: CPLR 3211(a)(7).
