2nd Dept. Gives Hope To Defendants In Labor Law §240(1) Case If Ladder Itself Is Not Defective.
The Second Department recently gave hope to some Labor Law §240 defendants in its decision in Hugo v. Sarantakos, 108 A.D.3d 744, 970 N.Y.S.2d 245 ( 2nd Dept. 2013).
Defendant hired plaintiff, a self employed painting contractor to paint the second floor exterior of his residential property in Queens. While standing on the second rung of his 24 foot ladder, a ladder plaintiff owned, plaintiff lost his balance and fell. Before the accident the ladder had not moved or slipped, and it remained upright after the plaintiff fell of it.
The Queens Supreme Court Judge had granted plaintiff summary judgment on the plaintiff Labor Law §240 claim. The Second Department reversed and granted summary judgment on the defendant.
After reviewing the usual Labor Law §240 standards, the Court examined the case law regarding ladders. “The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided (Delahaye v. Saint Anns School, 40 AD3d 679, 682; see Esteves-Rivas v. W2001Z/15CPW Realty, LLC, 104 AD 3d 802, 803-804; Artoglou v. Gene Scappy Realty Corp., 57 AD3d 460, 461l Aidias v. Morris Park Contr. Corp. 35 AD3d 805, 851). There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries (see Artoglou v. Gene Scappy Realty Corp., 57 AD3d at 461). “Where a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to Labor Law §240(1) does not attach (see Gaspar v. Pace Univ., 101 AD3d at 1074; Chin-Sue v. City of New York, 83 AD3d 643, 644). To impose liability under such circumstances would make a defendant an insurer of the workplace, a result which the Legislature never intended in enacting Labor Law §240(1) (see Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 NY3d 280, 286; Molyneaux v. City of New York, 28 AD3d 438, 439).”
Here, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law §240(1). The defendant demonstrated his prima facie entitlement of judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony and his own deposition testimony, which demonstrated that the ladder from which the plaintiff fell was not defective or inadequate and that the ladder did not otherwise fail to provide protection; rather, the plaintiff fell because he lost his balance.
Based on the testimony, etc., the Court found that the ladder at issue was not proven to be defective or inadequate. Indeed, because the plaintiff lost his balance, it was not proven that the ladder otherwise failed to provide protection.
While giving some hope to a Labor Law §240 defendant, the Court focused most on the factors (1) that the ladder itself was not defective, (2) the plaintiff lost his balance, and (3) the ladder itself did not fail. It remains to be seen what the Court might have decided if the ladder, although not found to be defective, and perhaps not owned by plaintiff, fell as a result of plaintiff merely losing his balance.
Note, although the accident occurred at a residential site, there was no discussion regarding the residential exemption.