The issue before the court is whether the defense of comparative negligence can be raised when a worker chooses not to use a separate ladder to climb and descend scaffolding erected at the work site or to use the portion of the end frame constructed as a ladder. The court concludes that under these circumstances the defense should be submitted to the jury.
Charles Costa Colella was employed as a pipefitter by E.I. Dupont de Nemours Co. at its Grasseli plant in Linden, New Jersey. He installed and repaired air and steam pipes located both above and underground. Accordingly, his work required the occasional use of scaffolding.
On January 30, 1976 plaintiff was assigned to repair a section of air pipe located approximately 16 feet above the ground. A platform located at the top of a scaffold tower had been erected ten weeks before to provide access to the trouble spot.
The scaffold was supported by two end frames constructed with tubular legs or rungs. Each end frame consisted of two vertical sections. The legs comprising the left vertical section
were evenly spaced at 18 inches. The right vertical section consisted of rungs which were spaced approximately 37 inches apart, thus creating large open areas. Eight feet above the ground the legs were then spaced at 18 inches apart to the top of the scaffold.
Plaintiff had used the scaffolding approximately ten times prior to the date of the accident, the last climb occurring two days earlier. Although separate access ladders were available, plaintiff did not use them to reach the platform on those occasions. Instead he would climb the left vertical section of the scaffold frame where the legs were evenly spaced at 18 inches.
On the day of the accident plaintiff observed that his ascent to the platform via the left vertical section was obstructed by overhead pipes. Nevertheless, plaintiff did not call for a separate access ladder. Instead he climbed halfway up the left side of the scaffold until he reached the obstruction. He then switched to the right section where at that point the rungs were evenly spaced at 18 inches and continued to climb to the platform.
He worked for a while and then decided to take a coffee break. Plaintiff started down the right side, but then forgot to switch to the other side as he had previously done on his ascent. When he reached the point where the rungs were spaced farther apart, he lost his footing and fell approximately six feet to the ground. Plaintiff sustained quadriplegia as a result of his injuries.
Plaintiff commenced suit against Safway Steel, the manufacturer of the scaffolding. The strict liability action alleges design defect and failure to warn. The gravamen of the action asserts that the scaffolding is defective because it resembles a ladder and thus invites its use as a ladder when in fact it is not. Plaintiff further contends that defendant failed to warn that a separate access ladder should be used.
Defendant has moved in limine seeking a ruling that the question of plaintiff's comparative ...