In Alvarez v. Colgate Scaffolding, et al., the defendant testified that the sidewalk bridge it had installed was properly fastened, that third-parties often loosened the bolts and removed the cross-braces to transport materials, and workers and children were often seen sitting on this cross-brace, indicating it was securely fastened.

The court denied the defendant’s summary judgment motion because it had failed to show that a foreman had been present on the day of the installation and failed to present any other evidence indicating that the bridge was properly installed.

Furthermore, the court held that plaintiff’s act of sitting on the cross-brace was not so unforeseeable or extraordinary so as to constitute a superseding cause that absolves defendant of liability. Finally, the court held that, while plaintiff assumed the risk of losing his balance, he did not assume the risk that he would fall as a result of an insecurely fastened cross-brace buckling.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09404.htm

Thanks to Georgia Stagias for her contribution to this post.