In Hauptner v Laurel Dev., LLC, the plaintiff was sitting at his deck when a ladder from an adjoining construction site fell and struck him. The plaintiff moved to dismiss the defendants’ affirmative defenses based on culpable conduct arguing that the defendants failed to show how the plaintiff caused or in any way contributed to the ladder falling into his yard. The lower court denied the plaintiff’s motion, but the Appellate Division reversed, stating that the affirmative defense was totally devoid of merit because there was no evidence whatsoever that the plaintiff expected that a ladder from the neighboring construction site would fall into his backyard.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_06458.htm