Wade Clark Mulcahy LLP

The First Department has again held that plaintiffs who fall from a ladder after receiving an electric shock may be entitled to summary judgment on their Labor Law § 240(1) claims, even if no party disputes that the ladder functioned properly and was not defective.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/01/Nazario-v-222-Broadway-LLC-2016-NY-Slip-Op-00251.pdf" rel="">Nazario v 222 Broadway, LLC </a></em>, plaintiff was using an A-frame ladder to remove old light fixtures. The power was supposed to be cut off, and plaintiff’s testing device indicated that there was no power running to the fixture on which he was working. Unfortunately, there was still a live current running to the light, and plaintiff was shocked.  He fell from the ladder, which then fell on top of him. The trial court dismissed plaintiff’s Labor Law § 240(1) claim on summary judgment after determining that plaintiff submitted no evidence concerning the worthiness of the ladder.
The First Department reversed the trial court’s ruling and granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, holding that plaintiff had established a <em>prima facie</em> case that his ladder provided him with inadequate protection. The court concluded that because the ladder was not secured to the ground in such a way to prevent it from falling over after plaintiff was shocked, the unsecured ladder was a violation of the Labor Law and the proximate cause of plaintiff’s injuries.
Justice Tom’s concurring opinion disagreed with the majority’s reasoning, while admitting that he was obligated by First Department precedent to concur with the overall ruling. Justice Tom expressed concern with developing First Department case law, which has held that plaintiffs who establish that a ladder was unable to keep them from falling after receiving an electric shock have also established that the ladder was a proximate cause of their injuries. Justice Tom believed that this line of cases has departed from the Court of Appeals’ ruling in <em>Blake v. Neighborhood Hous. Servs. Of N.Y. City</em> (a critical case for defending Labor Law § 240(1) claims), and created an unnecessary split with the remaining Departments, all of whom have held that falling from an A-frame ladder after receiving an electric shock, by itself, is insufficient to establish liability as a matter of law. Justice Tom counseled the need for additional evidence, such as whether the ladder was defective or whether additional safety devices were necessary, before granting summary judgment.
Until there is further guidance on this matter from the Court of Appeals, it may now be necessary to provide those working with electrical systems with safety measures to prevent them or their ladders from falling in the event they receive an electric shock.
Thanks to Peter Luccarelli for his contribution.
For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.