In Wu v. Yang, the plaintiff fell from an A-frame ladder while working in the defendants’ apartment.  The plaintiff testified that he had no prior issues with the ladder and was working well from the ladder when it suddenly moved and he fell.  The plaintiff did not know why the ladder shifted.

The plaintiff moved for summary judgment on his Labor Law 240 claim against the defendants, the defendants cross-moved to dismiss the compliant.  The lower court found that there was no §240 violation, as the plaintiff could not articulate how the ladder had failed.  All parties appealed.

The Second Department upheld the lower court’s decision as to the plaintiff’s motion but reversed the finding with regard to the defendants and re-instated the plaintiff’s Labor Law 240 claim against them.  The Appellate Division confirmed that not every fall from a height is a guaranteed 240 case and that, in order to prevail on a 240 claim, a plaintiff must establish that proper fall protection was not provided.  In other words, the plaintiff in the instant-action had to show that a proper ladder was not provided.  Nevertheless, the Court held that the question of whether proper protection was provided (whether there was in fact something wrong with the ladder that caused it to wobble) is a question of fact for a jury to decide, even in a case such as this where the plaintiff cannot articulate the reason for the ladder’s failure.

As defense counsel, we frequently defend against 240 claims where the plaintiff cannot articulate why the ladder moved and why they were caused to fall.  We frequently ask what else could we have given the plaintiff to protect them from this fall short of a plastic bubble to encase them in to prevent injuries.  While the Appellate Court’s decision once again protects workers who fall from a height, regardless of their description of the accident, it is not a guarantee win for the plaintiff at trial.  A jury in this action would still hear defense counsel’s argument (as opposed to cases where the plaintiff has already been awarded 240 and the matter proceeds to a damages-only trial) that the ladder was in good condition before the fall and was possibly not the reason why plaintiff fell.  The question of “what else could have been given to the plaintiff?” will be posed to a jury, affording the defendants a chance on prevailing with a defense verdict.

Thanks to Georgia Coats for her contribution to this post.  Please contact Tony Pinto for more information.