Over the years, the Court of Appeals decisions in the field of construction accident litigation have tended to come in waves, with a series of decisions favoring plaintiffs followed by a series of decisions favoring defendants. The 1990s saw a series of pro-worker decisions.1 The Court of Appeals then handed down a string of pro-defendant rulings,2 culminating with its April 2006 ruling in Robinson v. East Med. Ctr.3 Depending on one’s perspective, Robinson was the high or low water mark of those pro-defendant rulings. The plaintiff in Robinson had specifically asked for an eight-foot ladder that was needed to safely perform the ceiling-level work. He then waited for the ladder for almost two hours, in the meantime performing other tasks. Yet, because plaintiff afterwards tried to make do with an available, six-foot ladder he knew was too short for the task at hand, the Court of Appeals unanimously ruled per decision by Judge Susan Phillips Read that “[p]laintiff’s own negligent actions…were, as a matter of law, the sole proximate cause of the accident.”4

The plaintiffs’ bar was shocked and demoralized. In a case in which the plaintiff’s foreperson failed to provide the tool which plaintiff needed and specifically requested, the fault, the Court of Appeals ruled, lay solely with plaintiff. Where would this end? But the pendulum then began to swing back, especially during Chief Judge Jonathan Lippman’s almost seven years on the Court of Appeals.

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