In Victor Saavedra v. 89 Park Avenue LLC, the plaintiff was injured while climbing down from the top rung of a ladder.  Plaintiff moved for summary judgment, under Labor Law §240, but the motion was denied.  The defendants argued that plaintiff was provided with a ladder and plaintiff was the sole proximate cause of his injuries because he the fall occurred because plaintiff was standing on the top run. Defendant also argued plaintiff was a recalcitrant worker because he was told not to work on the date of the accident because of a debris in the area, and the trial court denied the motion.

But on appeal, the First Department held that despite being on the top rung of the ladder, the plaintiff was not the sole proximate cause of his injuries because a taller ladder could not fit in the workspace due to the continued presence of debris in the workspace.

The court also held that plaintiff was not a recalcitrant worker despite being told by the site safety manager that the room was unsafe. The site safety manager testified that she lacked authority to stop plaintiff from working and the evidence demonstrated that debris was on ongoing safety concern. Plaintiff previously complained to the site safety manager about the debris which demonstrated that debris was a recurring condition, known to exist for a period of months. Due to the recurring nature of the debris, plaintiff had no reason to believe that the site safety manager was directing him to stop work and therefore was not a recalcitrant worker.

Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information.