Workers who refuse to work safely
To recover under Labor Law §240(1) ("§240") the plaintiff must prove that there was a violation of the statute and that the violation was a proximate cause of the accident. Because comparative fault is not a defense, these claims are often suitable for resolution on a motion for summary judgment. On such a motion, if the defendant can produce evidence which, if accepted by a jury, can establish that the accident was not caused by a violation of the statute, or that the violation was not a proximate cause of the accident, then the defendant cannot be liable. This is the recalcitrant worker defense reduced to its simplest terms. It is not new or unique to Labor Law claims. It is a causation defense in which the defendant argues a different version of what caused the accident, which, if accepted, results in negating the plaintiff's claim that the statute was violated, or that if violated, that the violation was a proximate cause of the accident.
There may be more than one proximate cause of an accident. All such causes can only add up to 100%. However, if defendant has not violated the statute, then liability cannot exist, as the first necessary element of the plaintiff's proof has not been met. This means that there is 0% causal connection between the happening of the accident and any violation of the statute.
If the plaintiff proves that a defendant violated §240, and that the violation was a proximate cause, for example, of 60% of the accident, then the plaintiff has met his/her burden of proof, since the two elements of the cause of action have been established. If the defendant proves that the plaintiff's actions contributed 40% to the accident, the plaintiff still receives 100% of his/her damages. This is because §240 is an absolute liability statute and the plaintiff's comparative negligence is not a defense.
A defendant may establish that the plaintiff's acts or omissions caused the accident 100%. If so, defendant cannot be held liable. Nothing it did or did not do was a proximate cause of the accident. In any other area of law this would end the discussion. The Labor Law, however, often complicates otherwise sound and accepted principles of law.
One of the areas of complication in the Labor Law includes the "recalcitrant worker" defense. The name "recalcitrant worker" is partly to blame. It implies that whenever the plaintiff does not follow safety rules or procedures, a jury may hold the worker - not the defendant - responsible for the worker's injuries. If this were true, however, then a plaintiff's comparative negligence could reduce or eliminate the defendant's liability. This would contradict the well established strict liability provisions in §240 and Labor Law §241(1-5), and §241-a.
The recalcitrant worker defense acquired its name in Smith v. Hooker Chemical & Plastics Corp.[1] In that case, the court refused to extend the absolute liability provisions of §240, as the plaintiff sought, to require that owners and contractors be held "...absolutely liable not just because of their failure to follow the statutory mandate to supply safety devices and see to their proper placement and operation, but also to hold them liable unless they insisted that a recalcitrant worker use them..."[2]
For several years after Hooker, most courts required an affirmative offer of a safety device to the plaintiff and an affirmative refusal by the plaintiff to use the safety device to establish the recalcitrant worker defense. With these two elements, the court and litigants easily distinguished a viable recalcitrant worker defense from a simple comparative negligence claim.
Eventually, however, the courts discarded the requirement of the affirmative offer and rejection between the defendant and plaintiff injured worker. They replaced it with the test allowing circumstantial evidence from which a jury could draw the conclusion that adequate safety devices were provided, which the plaintiff failed to use, and that the failure to use the device was the sole cause of the accident.
One of the first cases to dispense with the Hooker affirmative proof requirements, and use the circumstantial evidence test, was Vona v. St. Peter's Hospital.[3] In Vona, a foreman specifically told the plaintiff to work using a stepladder. However, the foreman did not affirmatively point out any specific ladder. The plaintiff declined a ladder and stacked two five-gallon pails on top of one another. He suffered injury when he stood on them to reach the top of the door he was sealing.
The plaintiff moved for summary judgment on liability. Defendant tendered proof that after the accident the plaintiff's foreman saw a ladder in plain view only 10 feet from where the plaintiff fell. The Supreme Court denied plaintiff's motion for summary judgment. It found a question of fact whether the plaintiff was a recalcitrant worker for failing to use a stepladder. The Third Department affirmed. It held that a jury could conclude, based upon the evidence presented, that defendant had provided plaintiff with a safety device which was erected and in place (the stepladder which was ten feet away) and that plaintiff knew this (circumstantial evidence that the ladder was within his plain view) and that the plaintiff's failure to use the ladder could be construed as an implied refusal to use a plainly visible safety device.
Six months later, in Watso v. Metropolitan Life Ins. Co.,[4] the Third Department again affirmed the submission of a recalcitrant worker defense to the jury. The plaintiff fell wearing his safety harness and a 5 foot lanyard. However, the lanyard was not tied off when the plaintiff suffered injury. The Third Department held that a jury could find that the tie line was loose enough to stretch over to the spot where plaintiff was last working before the fall. This sufficiently established that plaintiff solely caused the accident because he purposefully failed to tie off to the provided safety line.
Since these early cases, the courts have gradually expanded the factual circumstances in which they will find issues of fact on the recalcitrant worker defense. These issues of fact generally will defeat a plaintiff's motion for summary judgment. This expansion, however, has led to some confusion and misstatements of the requirements for a valid recalcitrant worker defense. This article discusses the current status of the recalcitrant worker defense and the problems applying it to a real world set of facts. To help in applying the recalcitrant worker defense, we summarize below the general rules from governing case law.[5]
Before applying the recalcitrant worker defense to a given set of facts, the practitioner must distinguish situations where the defendant is (1) partially at fault for causing the accident (i.e. defendant's failure to provide a safety device is in part to blame for the accident) or (2) where defendant did provide an adequate safety device but plaintiff's refusal to use it was the sole cause of the accident (i.e. sole causation).
Under existing case law, only the second situation - plaintiff solely causing his accident -- should bar his recovery under §240. The reason is that in the first situation the accident was caused, at least in part, by defendant's failure to provide an adequate safety device. Under these circumstances the defendant's breach of the statute must impose absolute liability upon the defendant. The plaintiff's actions, even if it amounts to the refusal to use a safety device, can be nothing more than comparative negligence. Since comparative negligence is not a defense to a defendant's violation of the statute, the plaintiff is entitled to judgment, even if the plaintiff's actions were careless or "recalcitrant."
In the second situation, where the sole cause of the accident was the plaintiff's failure to use a safety device provided, nothing defendant did or did not do caused the accident. Stated another way, defendant did not breach the statute.[6] From these principles and analysis, the following rule emerges:
RULE #1: The recalcitrant worker defense does not apply where the defendant fails to provide any safety device and the failure to provide any safety device is a proximate cause of the accident.
The Vona case reasonably approached the issue of whether, under the specific facts presented, the recalcitrant worker defense should apply. In Vona, a ladder was within 10 feet of the plaintiff, available for his use, in plain view, and plaintiff had been told to use a ladder. The jury properly needed to decide if plaintiff's actions solely caused the accident, or whether defendant's violation of the statute was a proximate cause of the injury.
In some cases, a defendant will provide a safety device and then claim that this establishes, as a matter of law, that it did not violate §240. However, it does not always follow that the defendant has complied with the statute, merely because it has furnished a safety device.
For example, a defendant may provide a plaintiff with a ladder (a safety device) but with a safety defect (a bent leg). If the bent leg causes the ladder to fall and injure the plaintiff while plaintiff is working on the ladder, the defendant will be liable, even if the plaintiff is also comparatively at fault.
A more complex situation occurs when a case mixes elements of defective safety devices and the recalcitrant worker defense. In the above example, a defendant might prove that before the accident it told the plaintiff not to use the ladder with the bent leg unless a co-worker held it steady. A defendant then could argue that but for the plaintiff's recalcitrant behavior in not waiting for a co-worker to hold the ladder, this accident would never have happened. This is a superficially compelling argument which, if accepted by a jury, could result in a verdict that the plaintiff was solely (i.e. 100%) at fault for the accident. However, this is not the correct result under the strict liability provisions of §240.
In Stolt v. General Foods Corp.,[7] the Court considered the above fact pattern. The plaintiff suffered injury when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder at issue broke about a week before the plaintiff's accident. Defendant's representatives then instructed plaintiff not to use the ladder unless someone secured it during his work. Disregarding warnings, plaintiff used the ladder without assistance when his supervisor left the area.
On this record, the Court of Appeals held the mere fact that the plaintiff disobeyed his supervisor's instructions by climbing the ladder did not provide a proper defense against plaintiff's §240 claim. It was "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractors liability by failing to provide adequate safety devices [citations omitted]."[8] The decision recognized that plaintiff's injuries directly resulted from defendant's failure to supply a safe ladder or other devices that properly protected the plaintiff. Thus, the accident resulted at least, in part from defendant's violation of §240. Turning its attention to the recalcitrant worker defense, the Court of Appeals held "[i]t has no application where, as here, no adequate safety devices were provided [citations omitted]."[9]
In reaching this holding, the Court of Appeals reasoned that §240 required that defendant provide an adequate ladder. Defendant violated this duty, and that failure in part, was a proximate cause of the accident. Thus, the plaintiff met his burden of proof on liability under §240. Stolt therefore supports the following rule:
RULE #2: The recalcitrant worker defense does not apply where the safety device provided is inadequate or defective, and constituted a proximate cause of the accident.
The Stolt decision also concluded that "[w]e note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a 'safety device'."[10]
In Gordon v. Eastern Railway Supply, Inc.,[11] the Court of Appeals, citing Stolt and Hagins v. State,[12] held that "an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a 'safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment."[13]
No matter how many times a worker is told not to do an unsafe act or to be careful, a defendant cannot defeat an otherwise valid §240 claim by arguing that the plaintiff is a recalcitrant worker because he did not follow the instructions or warnings. Evidence of instructions alone does not support a recalcitrant worker defense. This gives rise to another rule.
RULE #3: Mere warnings or instructions do not satisfy the duty to provide adequate safety devices under §240.
Milewski v. Caiola,[14] provides a good example of this rule. The plaintiff in Milewski was employed by an elevator subcontractor. He suffered injury in defendant's building when planking supporting him gave way. The defendant opposed the plaintiff's motion for summary judgment on liability. It claimed that a co-worker had warned plaintiff that the planking that plaintiff was laying across the open elevator shaft - and which later gave way -- was unsafe to use. Defendant also claimed that the plaintiff had not tied off his safety harness and lanyard to the safety line.
The First Department rejected these arguments. It held that even if the plaintiff was recalcitrant for using the planking after being warned it was unsafe, and "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exists that the failure to provide proper safety planking was a more proximate cause of the accident."[15]
The simple failure of the plaintiff to use a safety device, even one that can be deemed adequate, will not necessarily prove a valid recalcitrant worker defense. Although it is no longer required to show that the plaintiff "affirmatively refused" to use a safety device which was provided, there still must be some showing that the plaintiff purposefully refused to use it. There must be some evidence, circumstantial or otherwise, from which the jury could conclude that the plaintiff deliberately refused to use the safety device. If the proof merely shows that there were safety devices somewhere on the job site which were not used by the plaintiff, this should not give rise to a recalcitrant worker defense.
In Gordon,[16] plaintiff suffered injury when he fell from a ladder. On the plaintiff's summary judgment motion on liability under §240, defendants argued that they repeatedly instructed plaintiff to use a scaffold, not a ladder, when sandblasting railroad cars. They also argued that there was a scaffold available on site, and that plaintiff had attended several safety meetings that included specific warnings not to sandblast from a ladder.
The Court of Appeals, affirming summary judgment to the plaintiff, stated:
We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a 'safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (citations omitted). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.[17]
This holding by the Court of Appeals in Gordon was consistent with the Fourth Department's holding below that a owner's statutory duty was not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection.[18]
That the plaintiff in Gordon sandblasted from a ladder rather than from an available scaffold, established only his contributory negligence. This was not a defense to liability under §240, and did not establish that plaintiff was a recalcitrant worker.[19] A recalcitrant worker under Gordon required proof that the plaintiff refused to take advantage of alternative, safer means to perform his work, or that he refused to use a safety device, which was provided.[20]
Thus, RULE #4 can be stated as: There must be some proof, direct or circumstantial, from which the jury may reasonably conclude that the plaintiff willfully or deliberately failed to use an available safety device.
This fourth rule is simple to express, but is more difficult when applying to individual fact patterns. This was evident in the Second Department 3:2 decision in Jastrzebski v. North Shore School District,[21] which was affirmed by the Court of Appeals for reasons stated in the memorandum of the Appellate Division.[22]
The Second Department's affirmed decision held that the jury's determination that plaintiff acted as a recalcitrant worker was supported by the record. Plaintiff had been working on a ladder when his supervisor instructed him to get off the ladder and to use the scaffold which was erected and in place at the site. The court noted that although plaintiff had indicated his assent to the directive and got off the ladder, he re-climbed the ladder as soon as his supervisor turned his back and began to walk away. Shortly after ascending the ladder a second time, the plaintiff fell, sustaining his injuries.
The majority in the Second Department refused to apply Gordon,[23] on the grounds that "implicit in Gordon is that the recalcitrant worker defense has no application where no adequate safety devices were provided... [i]n this case, unlike Gordon, scaffolding had been provided and was available for use by the plaintiff who refused to use it contrary to direct orders to do so."[24] The majority also noted that the defendant in Jastrzebski gave immediate and direct instructions, through plaintiff's supervisor, not to use the ladder. This, the Court felt, was significantly different and distinct from the passive instruction in Gordon to use the scaffold instead of the ladder. Importantly, the Second Department majority in Jastrzebski held "there was no evidence in Gordon that the plaintiff had knowingly refused a direct order as the plaintiff in this case had."[25]
The majority also stated that nothing in Gordon required the plaintiff "to tell his supervisor to his face that he was not going to obey him in order for the defendants to avail themselves of the recalcitrant worker defense."[26] Thus, under the totality of the circumstances, the plaintiff's refusal to use the available safety device could be implied. However, Judge Bracken, with Judge Krausman concurring, dissented, arguing that Gordon could not be distinguished on these grounds. There was no proof in Gordon that the scaffold plaintiff was told to use was unavailable for plaintiff's use at the site. They argued that the Appellate Division decision in Gordon, which contained more facts than the Court of Appeals decision, demonstrated that a scaffold was readily available for plaintiff's use. Therefore, Gordon controlled and required a plaintiff's verdict in Jastrzebski.
The Third Department has also found issues of fact on the recalcitrant worker defense on facts similar to Jastrzebski. In January of 1996, it decided Hickey v. C.D. Perry and Sons.[27] The plaintiff suffered injury when a 2 x 10 inch plank supporting him over a sluiceway, broke under the weight of his 370 pound body. The defendant claimed recalcitrant worker. It argued that ladders were supplied and in place. With these ladders, the plaintiff could have climbed down into the sluiceway, walked across the bottom and to the other side and up another ladder. Presumably, this would have prevented the accident.
Defendants were also uncertain why the plank was placed over the sluiceway. They ordered its removal on more than one occasion, and had actually removed it to stop workers from using it. The Court stated this created a sufficient issue of fact on the recalcitrant worker defense. There was sufficient circumstantial evidence that the plaintiff willfully refused the safety devices provided by defendant (i.e. the ladders). The Court inferred plaintiff's refusal to use the ladder by his actions.
It is difficult to reconcile Gordon with Jastrzebski and Hickey. And Gordon is not the only Court of Appeals decision that seemingly conflicts with these cases.
In Zimmer v. Chemung County Performing Arts,[28] the Court held "[t]he mere presence of ladders or safety belts somewhere at the worksite does not establish 'proper protection', leaving for the jury only the question whether the absence of safety devices was a proximate cause of the plaintiff's injury."[29]
In Bland v. Manocherian,[30] the plaintiff was working on a step ladder. It suddenly collapsed on him, propelling plaintiff through a fourth story window to the ground below. The case proceeded to verdict. In answer to specific interrogatories, the jury found that the ladder was not defective. They also found, however, that it was not properly placed to provide proper protection, and found for plaintiff. On appeal, the defendant argued that the jury's finding of improper ladder placement should bar the plaintiff from any recovery. Plaintiff placed the ladder near the window and §240 was not designed to insure a worker against his own avoidable fault.
The Court of Appeals did not accept this argument. It held that §240 imposed a non delegable duty on the owner and contractor to "erect" or "place" the ladder to provide plaintiff with "proper protection." Once defendant breached §240 and the breach was a proximate cause of the accident, plaintiff's actions or omissions were nothing more than comparative fault. They could not bar plaintiff's recovery under §240. As the Court of Appeals stated, "[c]onsequently, regardless of any carelessness on plaintiff's part which might also have contributed to his fall, defendants were properly held absolutely liable for the full extent of the damages proximately resulting from the improper placement of the ladder."[31]
For a time, courts discerned a plaintiff's willful and deliberate intentions not to use a safety device by focusing upon recent instructions to a plaintiff not use a given, available safety device. The Court of Appeals rejected this approach in Cahill v. Triborough Bridge and Tunnel Authority.[32]
In Cahill, the Court of Appeals reversed a 4:1 decision by the First Department granting plaintiff summary judgment. That majority decision in the appellate division found that the recalcitrant worker defense did not apply to the plaintiff. The record showed that the plaintiff disobeyed an immediate instruction to use a harness or other available safety device.
In considering the recalcitrant worker defense, the Court of Appeals redirected the focus of attention from whether or not the plaintiff was given instructions, to how a jury might judge the plaintiff's actions. It remarked that the word recalcitrant "fits plaintiff in this case well" because he disregarded specific instructions to use a safety line while climbing.[33] However, the Court then stated, "the controlling question, however, is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that his own conduct, rather than any violation of Labor Law §240(1), was the sole proximate cause of his accident."[34]
Cahill calls into question the viability of the Court of Appeals' earlier precedents on the recalcitrant worker defense discussed above. While Gordon, Bland, and Zimmer have not been overruled by the Court of Appeals, it has not recently cited these decisions when dealing with §240's duty to furnish, place, and operate such devices so as to give proper protection. This is apparent in the Court of Appeals' decision in Montgomery v. Federal Express Corp.[35]
The plaintiff in Montgomery was assigned to work in an elevator motor room located four feet above the roof level of a building. On previous occasions the plaintiff accessed the elevator motor room from stairs starting at the roof level. However, on the day of the accident the stairs were missing. The plaintiff, therefore, used an over turned bucket to get to the motor room without incident. He suffered injury when he left the elevator room by jumping to the roof level below.
The Court of Appeals affirmed the Appellate Division's dismissal of plaintiff's §240 claim against the owner and general contractor. It stated that "...since ladders were readily available, plaintiff's normal and logical response should have been to go get one. Plaintiff's choice to use a bucket to get up, and then to jump down, was the sole cause of his injury and he is therefore not entitled to recover under Labor Law §240(1)."[36]
Plaintiff suffered dismissal of his claim, even though defendant offered no proof of where the ladders were located, or whether they were available. Defendants also did not offer proof that they instructed plaintiff to use the ladder, or warned him not to use the bucket. The Court of Appeals relied on Blake v. Neighborhood Hous. Servs. of N.Y. City,[37] which deals with a plaintiff's actions which constituted the sole cause of the accident. It did not distinguish - or even mention -- its earlier holdings in Gordon, Zimmer, or Bland.
Similarly, in Robinson v. East Medical Center, LP,[38] the Court of Appeals affirmed the dismissal of the plaintiff's §240 claim. It held him solely responsible for his fall from the top step of a six foot step ladder. The record indicated, according to the Court, that plaintiff stood on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location. The Court of Appeals held that it was not sufficient that the plaintiff told his foreman 'by the way, I'm going to need an 8-foot ladder' to which the foreman replied, "I'll see if I can get you one," but never provided it.[39] According to the Court of Appeals, "these prerequisites [violation of the statute and proximate cause] do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them." Echoing Montgomery, the holding in Robinson did not mention Gordon, Zimmer or Bland.
In Montgomery and Robinson the Court of Appeals appears to overlook the old recalcitrant worker defense proof requirements. Now, a mere showing that a safety device was present somewhere on the job site may properly raise the recalcitrant worker defense. Therefore, the safer way to express these recent holdings is:
RULE #5: Where a defendant establishes that a safety device was present on the job site, the burden shifts to the plaintiff to prove that it was not readily available when needed.
Weininger And Its Legacy
Weininger v. Hagedorn & Co.[40] has impacted the recalcitrant worker defense more than any other Court of Appeals decision. Ironically, it is a terse, five paragraph decision that does not describe how or why the plaintiff fell from his ladder. This lack of detail about the injury producing event has generated much comment.
The main issue in the case dealt with whether the work the plaintiff was performing constituted an "alteration" under §240.[41] After agreeing with the Appellate Division that the work constituted an "alteration" of the building, the court stated:
Supreme Court erred, however, in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause. In the circumstances presented, a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law §240(1) did not attach.[42]
This holding initially gave rise to a belief that the Court of Appeals had pronounced a major shift in policy. Defendants argued that they could defeat a motion for summary judgment under Weininger merely by arguing that a reasonable jury could conclude that plaintiff's actions were the sole proximate cause of the accident.
This interpretation of Weininger was called into question by Judge Andrew V. Siracuse's decision in Secord v. Willow Ridge Stables, Inc.[43] Judge Siracuse pointed out that the Court of Appeals had firmly established a relatively low burden of proof upon a plaintiff [proof of a statutory violation and proximate cause] and that Weininger did not change the playing field. According to Judge Siracuse:
That the Court of Appeals has maintained this position up to the present is not immediately apparent in reading Weininger v. Hagedorn and Co., [citation omitted], but that case in fact is consistent with Rocovich, Zimmer and many others. What has most 'chilled the plaintiff's bar for the past months' (citation omitted) is the apparent breadth of the Court's pronouncement; as reported in the brief memorandum, the plaintiff fell from a ladder, and the Court held that the trial judge had improperly directed a verdict for the plaintiff; 'a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law §240(1) did not attach (citations omitted).'
This does indeed seem like a break from the past, and there is nothing in the Appellate Division decision that would lead one to a different conclusion.
* * * *
The record on appeal, however, shows that there was evidence before the Court that plaintiff was standing on the crossbar of the ladder, a misuse of the device. The omission of this key fact from all the written decisions is surprising, because it is the best explanation of the Court of Appeals holding. While the testimony was questionable, it would clearly have been possible for a reasonable jury to conclude that the accident was caused by this misuse rather than any defect in the ladder itself or its placement or operation; this issue of fact would preclude a directed verdict or summary judgment.[44]
After Weininger, the Court of Appeals decided Blake.[45] Blake reignited the defense bar's claims that summary judgment could not issue to plaintiff when an issue of fact existed about whether plaintiff solely caused the accident at issue. The plaintiff in Blake suffered injury when the upper portion of the extension ladder supporting him suddenly retracted. In affirming dismissal of the case based upon a jury finding that the ladder was "so constructed and operated as to give proper protection to plaintiff," the court held that "...under the circumstances of this case there was sufficient evidence upon which the jury was entitled to find that the ladder was not defective, inadequate or improperly placed, and that the sole cause of the accident was the manner in which the plaintiff used the ladder."[46]
Practitioners overreacted to Blake, as they had with Weininger. Weininger taught that to understand a §240 decision the practitioner must know all the facts -- not only those highlighted in a decision. The same is true for Blake. The key to understanding Blake is tucked away in its footnote number 8. "Given the procedural posture of the case before us we address neither the propriety of the Supreme Court's denial of plaintiff's motion for summary judgment nor whether defendant should have been granted summary judgment or a directed verdict."[47]
The plaintiff in Blake did not appeal the lower court's denial of his motion for summary judgment. The case proceeded to trial where the jury found the ladder at issue an adequate safety device under §240. Thus, the only issue on appeal was whether the record supported this conclusion.
In searching the record, the Court of Appeals noted that the plaintiff testified that the ladder was stable and not defective, and there was no reason to have it steadied during use.[48] The plaintiff also was not sure if he had locked the extension clips in place before ascending the rungs.[49] The Court of Appeals held that this record supported the jury's findings that there was no statutory violation and that plaintiff alone, by negligently using the ladder with the extension clips unlocked, solely caused the injury.[50] In reality, the plaintiff presented no facts such that the jury, or the court, could conclude that the ladder provided failed to comply with §240. Without a violation of §240, the plaintiff was fully responsible for the happening of the accident.
Some recent Appellate Division decisions have expanded the scope of when a defendant has complied with the duty to provide adequate safety devices. In Berenson v. Jericho Water Dist.,[51] the plaintiff was injured when he fell from a scaffold. The defendant's record suggested that plaintiff, or laborers under his supervision, placed an inadequate wooden plank on the scaffold, and that this caused its collapse. Defendant argued that this created an issue of fact as to whether plaintiff solely caused the accident. The Second Department agreed. It held that "when a plaintiff handles a scaffold in such a manner as to create the condition causing its collapse, his or her conduct is the sole proximate cause of the accident."[52]
Apparently the Second Department will now allow a jury to find that a defendant satisfies the duty imposed by §240 to provide safety devices which are "...constructed, placed and operated as to give proper protection" when the plaintiff has been provided adequate but unassembled components of a safety device.
The Fourth Department has reached a similar position. In Mulcaire v. Buffalo Structural Steel Constr. Corp.,[53] the Fourth Department found that the plaintiff had set forth a prima facie case on his motion for summary judgment on liability. Plaintiff demonstrated that he slipped through an uncovered opening in the floor and fell approximately 18 feet to the floor below. The Fourth Department, however, affirmed the lower court's denial of the plaintiff's summary judgment motion. It agreed that a jury could find that plaintiff's actions solely caused the accident, stating, "specifically, defendants raised an issue of fact whether there were extra sheets of decking available to plaintiff for safety purposes and, if so, whether plaintiff, based on his training, prior practice, and common sense, knew or should have known to cover the opening, and similar openings, which were created by the act of laying down the decking according to the project plan."[54]
Does Mulcaire mean an experienced construction worker may become a recalcitrant worker when he does not do the normal and logical act of covering up an unguarded opening when he sees it? Not quite. Eight months after deciding Mulcaire, the Fourth Department declined to apply its holding to a similar case. In Ganger v. Anthony Cimato/ACP Partnership,[55] the plaintiff fell through an unguarded skylight. Defendant alleged that the plaintiff's conduct solely caused the accident. It claimed that the plaintiff "based on his training, prior practice, and common sense, knew or should have known to cover the opening," and his "normal and logical" response should have been to go get planks to cover the skylight.[56]
The Fourth Department rejected this argument and granted plaintiff summary judgment, reasoning:
Defendants have not submitted evidence that would permit a jury to find 'that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured' (citations omitted). [57]
Whether or not Mulcaire correctly reflects the current state of the recalcitrant worker defense, defendants will claim that it does. This brings up two of the most important rules when analyzing the Labor Law and the recalcitrant worker defense:
RULE #6: Don't read these decisions too literally, because not everyone will agree with the holding or be willing to follow it.
And
RULE #7: Finding a case directly on point is no cause for rejoicing; remember there are always two others cases holding the other way.
While these two rules are more of a caution than actual rules of law, they are nonetheless the most important. First, they prevent reliance on similar cases, which on closer analysis are not actually that similar. Second, these rules caution that the practitioner should not be so bold as to believe all judges are willing to give up the rule of reason in favor of blindly following precedent. This leads to:
RULE #8 being: Failure to comply with Rules #6 and #7 establishes the existence of a recalcitrant lawyer.
[1]89 A.D.2d 361, 455 NYS2d 446 (4th Dep't 1982).
[2]Id. at 365.
[3]223 A.D.2d 903, 636 N.Y.S.2d 218 (3rd Dep't 1996).
[4]228 A.D.2d 883, 644 N.Y.S.2d 399 (3rd Dep't 1996).
[5]While the recalcitrant worker defense and the following analysis applies to all subsections of §240, §241(1-5), and §241-a of the Labor Law, only §240(1) will be referred to because that subsection is, by far, the most litigated Labor Law claim involving the recalcitrant worker defense.
[6]Blake v. Neighborhood Hous. Serv. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003).
[7]81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993).
[8] Id. at 920.
[9] Id.
[10]Id.
[11]82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993).
[12]81 N.Y.2d 921, 597 N.Y.S.2d 651(1993).
[13]Gordon, 82 N.Y.2d at 562.
[14]236 A.D.2d 320, 654 N.Y.S.2d 738 (1st Dep't 1997).
[15]Id. at 320.
[16]82 NY2d 555.
[17]Id. at 563.
[18]Gordon v. Eastern Railway Supply, Inc., 181 A.D.2d 990, 991, 581 N.Y.S.2d 498, 499 (4th Dep't 1992).
[19]Id. citing Hagins v. State of New York, 159 A.D.2d 941, 552 N.Y.S.2d 797 (4th Dep't 1990), aff'd 81 N.Y.2d 921, 597 N.Y.S.2d 651 (1993); Klien v. General Foods Corp., 148 A.D.2d 968, 539 N.Y.S.2d 604 (2nd Dep't 1989); Koumianos v. State, 141 A.D.2d 189, 534 N.Y.S.2d 512 (1988).
[20]See Tennant v. Curcio, 237 A.D.2d 733, 655 N.Y.S.2d 118 (3rd Dep't 1997); Reed v. State, 78 N.Y.2d 1, 571 N.Y.S.2d 195 (1991); Van Alstyne v. New York State Thruway Auth., 244 A.D.2d 978, 665 N.Y.S.2d 220 (4th Dep't 1997).
[21]233 A.D.2d 677, 637 N.Y.S.2d 439 (2nd Dep't 1996).
[22] 88 N.Y.2d 946, 647 N.Y.S.2d 708 (1996).
[23] Jastrzebski , 233 A.D.2d at 680.
[24]Id.
[25]Id.
[26] Id.
[27]223 A.D.2d 779, 636 N.Y.S.2d 153 (3rd Dep't 1996).
[28]65 N.Y.2d 513, 524, 493 N.Y.S.2d 102 (1985).
[29]Id. at 524.
[30]66 N.Y.2d 452, 497 N.Y.S.2d 880 (1985).
[31]Id. at 460-461.
[32]4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004).
[33]Id. at 39-40.
[34]Id.
[35]4 N.Y.3d 805, 795 N.Y.S.2d 490 (2005).
[36]Id. at 806.
[37]1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003).
[38]6 N.Y.3d 550, 814 N.Y.S.2d 589 (2006).
[39]Id. at 554.
[40]91 N.Y.2d 958, 672 N.Y.S.2d 840 (1998).
[41]Plaintiff was running computer and telephone cable through the ceiling from an existing computer room into a newly leased space.
[42]91 N.Y.2d at 960.
[43]179 Misc.2d 366, 684 N.Y.S.2d 867 (Monroe Co. Sup. Ct. 1999).
[44]Id. at 371.
[45]1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003).
[46] Id. at 292.
[47]Id. at 293.
[48]Id. at 292.
[49]Id.
[50]Id.
[51]33 A.D.3d 574, 822 N.Y.S.2d 145 (2nd Dep't 2006).
[52]Id. at 576.
[53]45 A.D.3d 1426, 846 N.Y.S.2d 838 (4th Dep't 2007), mot. rearg. den, lv. app. den., 49 A.D.3d 1320, 853 N.Y.S.2d 519 (4th Dep't 2008).
[54]Id. at 1427.
[55]53 A.D.3d 1051, 862 N.Y.S.2d 678 (4th Dep't. 2008).
[56]Id. at 1053.
[57]Id.
