In Barnes v Sam Burt Houses, Inc., the plaintiff was a resident of the apartment building owned by the defendant and claims he was asked by a building porter to climb an A-frame ladder to see if there were any cats in the air conditioning vent. The plaintiff agreed, and went up four steps of the ladder to look into the vent. After two to three minutes, he began to climb down the ladder, but the ladder began to wobble causing him to fall. Plaintiff claims the porter was not holding the ladder as he descended and sued the building, claiming it was liable for acts of its employee.

A jury trial was held in Kings County Supreme Court and the plaintiff’s sole theory of liability was that the porter was negligent in letting go of the ladder as the plaintiff attempted to descend it. There was no claim that the ladder was defective. At the close of evidence, the building owner moved for judgment as a matter of law on the ground that it owed no duty of care to the plaintiff since he was a “volunteer”.  Prior New York cases held that where a party voluntarily assists an employee in performing responsibilities of the employer, the employer has no duty to that party and cannot be found liable.  The Supreme Court denied the motion and the jury found the defendant 55% liable for the accident and the plaintiff 45% at fault. (Damages were stipulated at $1,552,974.26).

On appeal, the Second Department ruled that the Supreme Court should have granted the defendant’s motion for judgment as a matter of law on the issue of liability because  “the plaintiff was a volunteer and had no basis for recovery against the defendant.” As such, the plaintiff’s complaint was dismissed.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.