Consider the following hypothetical: Defendant Smith & Jones Corporation (SJC) is an electrical subcontractor at a construction site in Manhattan. One of its A-frame ladders is damaged, and thereby dangerous to use. A foreperson marks it with blue tape, signifying to its employees that the ladder should not be used, but SJC neglects to remove it from the site. Sometime later, an employee of EBM Drywall Corp. (EBM), the drywall and ceiling contractor, sees the ladder and attempts to use it since it happens to be conveniently at hand when he needs a ladder. The ladder wobbles, causing it and the worker—let's call the worker plaintiff—to fall. Plaintiff sues, amongst others, SJC for negligently leaving a defective ladder where it was highly likely to be used (i.e., at a construction site).

Now consider a second hypothetical. The facts are identical to the first hypothetical, but with one difference. In the second hypothetical, the entity which leaves the ladder at the construction site, ABC Designers, Inc. (ABC), is not an electrical subcontractor. It is a building tenant with no role in the construction project save for the fact that the construction work—which is being performed by various contractors directly or indirectly hired by the building's owner—happens to encompass the area ABC leases from the building owner. The facts are otherwise the same. An ABC employee knows the ladder is defective, marks it with blue tape, but then knowingly leaves it at a construction site where it is likely that someone will eventually try to use it. And the plaintiff eventually does so, resulting in injury.