The plaintiff-worker ascends a perfectly fine, A-frame ladder. There is, however, one thing wrong with this picture. Plaintiff did not open the perfectly fine, A-frame ladder and instead decided to use it in closed position. Not surprisingly, the ladder slides, causing ladder and worker to fall.
Does the worker’s conduct bar recovery under Labor Law §240 on the ground that plaintiff’s own conduct was the “sole proximate cause” of the accident? Or does the plaintiff prevail as a matter of law because the absolute liability statute expressly requires the site owner and contractors to assure that the ladder and all other elevation devices are “so constructed, placed and operated as to give proper protection….” Or perhaps, a third possibility, the jury gets to decide whether this plaintiff who fell from an unopened ladder prevails or loses?
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