Binding
precedents from all four Departments of the Appellate Division,
including Second Department precedents hold that where it is
uncontested that the plaintiff was injured as a result of falling
from a ladder, and “at the time of his fall, there were no safety
belts, nets, or other safety devices in the area, and he was not
equipped with any safety devices. Under the circumstances, the
plaintiff established his prima facie entitlement to judgment as a
matter of law on the issue of liability on the cause of action
pursuant to Labor Law § 240(1)” Denis v. City of New York,
54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008);
see Lesisz v. Salvation Army, 40 A.D.3d 1050, 837
N.Y.S.2d 238, 240 (2d Dep’t 2007); Velasco v. Green Wood
Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459, 459-460 (1st Dep’t
2004).
In Velasco,
8 A.D.3d at 89, 779 N.Y.S.2d at 459-460, the Appellate Division,
First Department expressly held as follows, directly refuting defense
counsel’s ridiculous claim that the subject precedents do not stand
for this proposition:
“Defendants argue that the ladder was in no way defective, and that the only cause of the accident was plaintiff's own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The argument overlooks plaintiff's evidence that no safety devices were provided to protect him in the event the ladder slipped. Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (see Davis v. Selina Dev. Corp., 302 A.D.2d 304, 305, 754 N.Y.S.2d 872; Bonanno v. Port Auth., 298 A.D.2d 269, 270, 750 N.Y.S.2d 7; cf. Blake v. Neighborhood Hous. Servs., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757). Plaintiff's use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603).”In Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774, the express language of the Appellate Division, Second Department also directly contradicts the defense counsel’s specious contention:
“As the plaintiff was removing one of the guard frames, the ladder began to shake, causing him to fall to the ground. In his affidavit, the plaintiff asserted that at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law § 240(1) ( see Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Argueta v. Pomona Panorama Estates, Ltd.,39 A.D.3d 785, 786, 835 N.Y.S.2d 358; Boe v. Gammarati, 26 A.D.3d 351, 351-352, 809 N.Y.S.2d 550; Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190; Guzman v. Gumley-Haft, Inc., 274 A.D.2d 555, 556, 712 N.Y.S.2d 45).”Appellate Division, First, Second and Third Department precedents hold that a fall from a ladder or scaffold precipitated by the materials with which plaintiff was working or type of work that the plaintiff was performing, including (1) an electrician being shocked by live wires, (2) a person who fell from a ladder while working on a fence, or (3) a carpenter installing a sign falling from a ladder when the sign suddenly and unexpectedly came loose, sets forth a prima facie violation of the Labor Law, as “it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defendants, who admittedly provided no safety devices, absolutely liable under section 240(1) [citations omitted].” Kadoic v. 1154 First Ave. Tenants Corp., 277 A.D.2d 66, 716 N.Y.S.2d 386, 387 (1st Dep’t 2000); see Castillo v. 62-25 30th Ave. Realty, LLC, 47 A.D.3d 865, 865-866, 850 N.Y.S.2d 616, 617-618 (2d Dep’t 2008); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491, 492-494, 834 N.Y.S.2d 242, 244-245 (2d Dep’t 2007); Quackenbush v. Gar-Ben Associates, 2 A.D.3d 824, 825, 769 N.Y.S.2d 387, 388 (2d Dep’t 2003); Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808, 810 (2d Dep’t 1995); Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 378, 676 N.Y.S.2d 174, 176 (1st Dep’t 1998); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819, 820, 629 N.Y.S.2d 819, 820 (3d Dep’t1995).
In Gange,
220 A.D.2d at 558, 632 N.Y.S.2d at 810, the Appellate Division,
Second Department held that an electrician who fell from a ladder
after being shocked was entitled to recover under Labor Law §
240(1), as the ladder was an insufficient safety device to prevent
him from falling after he was shocked:
“Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”In Quackenbush, 2 A.D.3d at 825, 769 N.Y.S.2d at 388, the Appellate Division, Second Department explained its rationale in Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, as follows:
“The unrebutted evidence adduced at trial by the plaintiff, an electrician, demonstrated that the defendants, which opted not to call any witnesses or present any evidence at trial, did not provide him with proper protection from height-related dangers connected with his work, and that the ladder on which he worked was inadequate to prevent him from falling 14 feet to the floor after sustaining an electric shock in the course of connecting a ceiling fixture ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department expressly adopted the Second Department’s rationale fromGange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810:
“Gange v. Tilles Investment Co., 220 A.D.2d 556, 632 N.Y.S.2d 808, is directly on point. There, the Appellate Division, Second Department stated (at 558, 632 N.Y.S.2d 808), ‘the fact that the plaintiff fell off the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).’”In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department directly addressed and rejected the argument of the defendant’s herein, holding “[r]egardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries”:
“Plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) cause of action, where he was injured when he fell from a ladder while in the course of removing an eight-foot high fence at a construction site. Regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries (see Ben Gui Zhu v. Great Riv. Holding, LLC., 16 A.D.3d 185, 791 N.Y.S.2d 43 [2005]; Dunn v. Consolidated Edison Co. of N.Y., Inc., 272 A.D.2d 129, 707 N.Y.S.2d 420 [2000] ).”Binding Appellate Division, First, Second and Fourth Department precedents expressly reject the defense that plaintiff’s negligently performing work outside exposed to the elements, including rain (as instructed by his employer) where it was foreseeable that this type of accident could occur, was the sole proximate cause of the accident, instead holding “[e]vidence of rain, or other ‘concurrent cause’, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim [citations omitted]. If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.” Robinson v. NAB Const. Corp., 210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337, 338-339 (1st Dep’t 1994); see Shipkoski v. Watch Case Factory Associates, 292 A.D.2d 587, 588-589, 741 N.Y.S.2d 55, 56-57 (2d Dep’t 2002) (Holding that “to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (see Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra)” and this burden is met upon evidence of hazards caused by “neglect, vandalism, and the elements that the plaintiff's work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (see Gold v. NAB Constr. Corp., 288 A.D.2d 434, 733 N.Y.S.2d 681; Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411; Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342).”); Callan v. Structure Tone, Inc., 52 A.D.3d 334, 335, 860 N.Y.S.2d 62, 63 (1st Dep’t 2008) (“Plaintiff worker, an electrician employed by third-party defendant subcontractor, was injured while installing ceiling lights over a weekend in an unventilated room where the temperature was estimated at over 100 degrees; he became dizzy from the heat, then nauseous, and fell from near the top of a 10-foot ladder. The worker recalled that as he attempted to reach down to grab hold of the ladder to stabilize himself, the ladder wobbled, he passed out, and both he and the ladder toppled over. Defendant was the general contractor at the work site, and deposition testimony of its project foreman corroborated the worker's testimony that prior complaints of excessive heat during weekend duty had gone unheeded. The unrefuted evidence of excessively hot work conditions, of which defendant had notice and control; the foreseeable consequence to workers who might suffer heat-related physical symptoms under such circumstances; and the lack of proper safety equipment afforded to elevated workers in light of these conditions, provided a basis for finding defendant strictly liable under Labor Law § 240(1) ( Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 684 N.Y.S.2d 523 [1999]; see also Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001]).”); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726, 728-729 (4th Dep’t 2000) (“We also reject Amadori's contention that, because plaintiff knew the plank was wet and complained about its safety before using it, there is an issue of fact whether the absence of safety devices was the sole proximate cause of plaintiff's injuries. “It is well settled that the [plaintiff's] contributory negligence is not a defense to a claim based on Labor Law § 240(1)” (Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; see also, Robinson v. NAB Constr. Corp.,210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337).”); Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 515-516, 684 N.Y.S.2d 523, 524 (1st Dep’t 1999) (“We note that even if the testimony of defendants' expert witness were sufficient to raise a fact question on the cause of plaintiff's fall, partial summary judgment would still have been properly granted to plaintiffs because defendants failed to provide proper protection to plaintiff, e.g., a scaffold, in the event he became overcome by heat, which was foreseeable under the circumstances (see, Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Robinson v. NAB Constr. Corp., 210 A.D.2d 86, 620 N.Y.S.2d 337).”).
In Robinson,
210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339, the Appellate Division,
First Department expressly rejected the contention that a worker’s
performing assigned work outside in the rain was the sole proximate
cause of his fall from an elevated worksite, holding:
“Evidence of rain, or other “concurrent cause”, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim (see, Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 776, 593 N.Y.S.2d 553, citing Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.”In the instant action, the uncontroverted evidence shows that plaintiff fell when he was shocked by the welding equipment he was forced to use outside in the rain without any shelter being provided (see Shipkoski, 292 A.D.2d at 588-589, 741 N.Y.S.2d at 56-57; Callan, 52 A.D.3d at 335, 860 N.Y.S.2d at 63;Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339), plaintiff shook, the ladder shifted, sank into the mud, and he and the ladder fell to the ground as a result of the failure to provide any adequate safety devices in violation of Labor Law § 240, so plaintiff has demonstrated a prima facie entitlement to summary judgment on his Labor Law 240(1) cause of action. See id.; Kadoic, 277 A.D.2d at 66, 716 N.Y.S.2d at 387; Davis, 302 A.D.2d at 305, 754 N.Y.S.2d at 872; Costello, 305 A.D.2d at 447, 761 N.Y.S.2d at 80-81; Peter, 300 A.D.2d at 289-290, 750 N.Y.S.2d at 772-773.
The
failure to provide safety devices may be a proximate cause of the
plaintiff’s injuries sufficient to remove the “sole proximate
cause” defense from the case and support the grant of summary
judgment to an injured worker. See Denis v. City of New
York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t
2008); Boe v. Gammarati, 26 A.D.3d 351, 352, 809
N.Y.S.2d 550, 550-551 (2d Dep’t 2006); Brandl v. Ram
Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511, 511-512 (2d
Dep’t 2004); Wallace v. Stonehenge Group, Ltd., 1
A.D.3d 589, 767 N.Y.S.2d 450, 451 (2d Dep’t 2003); Ranieri
v. Holt Construction Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509, 510
(1st Dep’t 2006) (“Plaintiff, a sheet metal worker employed by a
subcontractor, was injured when he fell from an unsecured ladder with
no safety devices provided to protect him. This activity fell within
the ambit of Labor Law § 240(1), and the failure to supply plaintiff
with a properly secured ladder or any safety devices was a proximate
cause of his fall (see Samuel v. Simone Dev. Co., 13
A.D.3d 112, 786 N.Y.S.2d 163 [2004]; Velasco v. Green Wood
Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004]). There is no
reasonable view of the evidence to support defendants' contention
that plaintiff was the sole proximate cause of his injury, nor is
there a triable question of fact as to whether he was solely to
blame.”); Peralta v. American Telephone And Telegraph
Company, 29 A.D.3d 493, 494, 816 N.Y.S.2d 436, 436-437 (1st Dep’t
2006) (“Unrefuted evidence that the unsecured ladder moved,
combined with evidence that no other safety devices were provided to
plaintiff, warranted a finding that the owners were absolutely liable
under Labor Law § 240(1), notwithstanding claims of comparative
negligence (see Velasco v. Green Wood Cemetery, 8 A.D.3d
88, 779 N.Y.S.2d 459 [2004] ), or unsupported claims that plaintiff's
conduct was the sole proximate cause of her injuries.”); Morales
v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-49, 802 N.Y.S.2d
41, 44-46 (1st Dep’t 2005); Serrano v. 432 Park South
Realty Co., LLC, 8 A.D.3d 202, 779 N.Y.S.2d 198, 199 (1st Dep’t
2004); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89,
779 N.Y.S.2d 459 (1st Dep’t 2004); Morin v. Machnick
Builders, Ltd., 4 A.D.3d 668, 669-670, 772 N.Y.S.2d 388,
390-391 (3d Dep’t 2004); Bonanno v. Port Of Authority Of
New York And New Jersey, 298 A.D.2d 269, 270, 750 N.Y.S.2d
7, 8 (1st Dep’t 2002) (“No other safety devices were provided to
prevent the fall. Nor does the evidence suggest that
plaintiff's own actions were the sole proximate cause of his
injury. Thus, plaintiff, as a matter of law, was entitled
to recover on his Labor Law § 240(1) claim. Plaintiff
was under no obligation to show that the ladder was defective in some
manner (Klein v. City of New York, 222 A.D.2d 351, 635
N.Y.S.2d 634, affd. 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458)
or to prove that the floor was slippery to make out a Labor Law §
240(1) violation. It was sufficient to show the absence
of adequate safety devices to prevent the ladder from sliding or to
protect plaintiff from falling. (Orellano v. 29 East 37th
Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16.)”).
In Morin,
4 A.D.3d at 669-670, 772 N.Y.S.2d at 390-391, the Appellate Division
held as follows, directly substantiating plaintiff’s position and
directly refuting defense counsel’s specious contention:
“The only elevation related safety device provided to plaintiff was the extension ladder. No ropes or other safety devices were provided to secure the ladder and prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip.... Accordingly, plaintiff established that defendants violated Labor Law § 240(1) and such violation was a cause of his injury (see Tavarez v. Weissman, 297 A.D.2d 245, 246 247 [2002]; Squires v. Robert Marini Bldrs., supra at 808 809; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689 [1993]). As this statutory violation was a proximate cause of plaintiff's fall, plaintiff's own actions cannot be the sole proximate cause of his fall (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at * 6 n 8).”Similarly, in Serrano, 8 A.D.3d at 202, 779 N.Y.S.2d at 199, the Appellate Division, First Department held as follows:
“Plaintiff established that his accident was attributable to a lack of proper safety equipment and/or the failure to secure the ladder upon which he was working. Even if plaintiff had been negligent in continuing his work in his coworker's momentary absence, no triable issue would therefore be raised as to whether liability should be imposed upon defendant pursuant to Labor Law § 240(1), since such negligence would not be susceptible of characterization as the sole proximate cause of plaintiff's harm (see Dasilva v. A.J., Contr. Co., 262 A.D.2d 214).”The Second Department reached the identical result in Wallace, 1 A.D.3d at 589, 767 N.Y.S.2d at 451:
“The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41). In opposition, the defendants failed to raise a triable issue of fact regarding liability. While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (seeVacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240; DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).”; see also Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774 (quoted above in paragraph 25).Defendant also claims that plaintiff has failed to demonstrate which safety devices could have been employer to prevent his accident, purportedly preventing plaintiff from proving a prima facie entitlement to summary judgment. This contention is both factually and legally incorrect. The defendant’s argument is legally deficient, as binding Appellate Division, First and Third Department precedents which hold “[t]he plaintiff is not ‘required to present evidence as to which particular safety devices would have prevented his injury’ [citations omitted].” Cangialosi v. Gotham Const. Co., LLC, 865 N.Y.S.2d 892, 897-898, 22 Misc.3d 189, 193 (Sup.Ct. Kings County 2008) (Jack M. Battaglia, J.); see Cody v. State, 52 A.D.3d 930, 931, 859 N.Y.S.2d 316, 318 (3d Dep’t 2008) (“Nor was claimant required to prove what additional safety devices would have prevented his injury (see Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495 [2000]). Thus, defendant violated Labor Law § 240(1) as a matter of law (see Kyle v. City of New York, 268 A.D.2d at 196-197, 707 N.Y.S.2d 445; Reed v. State of New York, 249 A.D.2d 719, 720, 671 N.Y.S.2d 820 [1998]), and this violation clearly was a proximate cause of claimant's injury (see Meyers v. State of New York, 30 A.D.3d at 928, 817 N.Y.S.2d 735; Pearl v. Sam Greco Constr., Inc., 31 A.D.3d 996, 997-998, 819 N.Y.S.2d 193 [2006]).”); Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495, 496-497 (1st Dep’t 2000).
In Noble,
277 A.D.2d at 21, 714 N.Y.S.2d at 496-497, a precedent relied on by
defendant in its memorandum of law in opposition to plaintiff’s
cross-motion, the Appellate Division, First Department expressly
rejected the defendant’s contention:
“Assuming plaintiff's slide down the boiler was caused by his hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 516, 684 N.Y.S.2d 523). Moreover, any comparative negligence by plaintiff would not be a defense to the section 240(1) violation in failing to provide a safety device (see, Ortiz v. SFDS Dev., 274 A.D.2d 341, 342, 712 N.Y.S.2d 94, 96, citing, inter alia, Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556). Nor was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 338, 624 N.Y.S.2d 110, appeal dismissed and lv. denied 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766).”
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
