One such decision is Taveras v Quisqueya II Housing Company, decided by Supreme Court, Queens County on May 8, 2014.
On October 19, 2008, at 3:20 a.m., Plaintiff Jess Taveras returned to his apartment at 2240 Amsterdam Avenue after an evening of drinking in Brooklyn. Upon returning, Taveras realized that he had locked himself out. In an attempt to gain access to his fifth floor apartment, Taveras accessed the fire escape by climbing the retracted ladder. Taveras made it to the landing of the second floor fire escape, at which point he was observed by police officers, who directed Taveras to return to the ground. Instead of lowering the ladder to descend, Taveras climbed onto the retracted ladder. Taveras alleges that, at this point, the ladder slid to the ground with Taveras on it, causing him injury. A subsequent inspection by an engineer retained by defendant TMA Contracting Corp., failed to reveal any defect in the ladder mechanism.
The court cited two decisions involving similar facts.
In Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2d Dept. 2002), plaintiff, after locking himself out of a building, injured himself when a rung on the fire escape ladder collapsed as he tried to climb it. The Second Department held that plaintiff’s complaint should be dismissed, reasoning that plaintiff’s “unnecessary and unforeseeable act of climbing onto the dumpster and ascending the fire escape was the sole and superseding proximate cause of his injuries.”
In Kellman v. 45 Tiemann Associates, 87 NY2d 871 (Ct. App. 1995), the plaintiff was injured when, while standing on the fire escape to clean her windows, she fell through the stairwell of the fire escape. The Court of Appeals held that there were issues of fact at to “(1) whether it was foreseeable that tenants would use the fire escape landings to clean windows or for other purposes, and, if so, (2) whether defendant landlord exercised reasonable care to protect tenants from injuring themselves by falling through the unguarded hatchways in fire escape landings.”
The Taveras court held that the facts of this case are closer to those of Misirlakis than Kellman, and that plaintiff’s conduct here was “more egregious than” the plaintiff’s conduct in Misirlakis. It continued:
Although it is foreseeable that some one might ascend a fire escape to access a locked apartment, it was not foreseeable that plaintiff would attempt to descend the ladder while it was in its raised position. Had plaintiff lowered the ladder and used it in its intended configuration, the accident could not have happened. Thus, as in Misirlakis, Tavares’ conduct was the “sole and superseding proximate cause of his injuries.” Accordingly, the motion and cross-motion are granted and the complaint is dismissed.
This case illustrates one more reason not to attempt to use a fire escape ladder for a non-emergency purpose, especially after a night of drinking.