I write, not for the first time, to decry the continued existence after almost 20 years of a significant hole in the Labor Law jurisprudence. I refer to the shadow at the heart of the "sole proximate cause" defense, a shadow that exists by reason of two ostensibly conflicting Court of Appeals decisions which have never been harmonized.

Back in 1996—a generation ago—the Court of Appeals considered a case in which a ladder "slipped out from under [the plaintiff]" not because of any defect in the ladder itself, but instead because "[t]he room where the accident occurred had been flooded a few days before the accident with 'air scubber water,'" the event had left a residue of "gunk," and the plaintiff himself had placed the ladder on top of the "gunk." Plaintiff, "who was the sole witness to the accident, testified that although the room appeared clean to him when he entered, after his fall, he observed a film or 'gunk' on the floor where he had placed the ladder."

A unanimous Court of Appeals ruled in Klein v. City of New York, 89 N.Y.2d 833 (1996) that, even though the accident was caused by plaintiff's own placement of the ladder, the ladder's slippage entitled plaintiff to summary judgment under Labor Law §240(1). The court reasoned that the legislative history concerning Labor Law §§240 and 241 "makes clear the Legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor [internal quotations omitted]'" and plaintiff "established a prima facie case that defendant violated Labor Law §240(1) by failing to ensure the proper placement of the ladder due to the condition of the floor [emphasis added]."