Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/08/Biaca-Neto-v.-Boston-Rd-II-Hous-Dev-Fund-Corp.-1.pdf">Biaca-Neto v. Boston Rd II Hous Dev Fund Corp.</a>,</em>the New York Court of Appeals’ recent ruling offers some insight into how courts will rule regarding sole proximate cause defenses in New York Labor Law cases.</p>
<p style="text-align: justify;">Under section 240(1) of the New York Labor Law, construction workers who are injured at job sites can recover if the injury is the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. However, the New York Court of Appeals has held that if a defendant can establish that a plaintiff was the “sole proximate cause” of his own injury, then the plaintiff will be unable to recover.</p>
<p style="text-align: justify;">The sole proximate cause defense, as detailed in <em>Gallagher v. New York Post</em>, requires the defendant to establish the following: (1) that the safety or protective device the plaintiff should have used was “readily available,” (2) that the plaintiff knew he was expected to use the device, and (3) that the plaintiff chose not to use the safety device “for no good reason.” The third element of this standard logically implies that if the plaintiff can establish that he had some acceptable reason for his actions, then the defense will be unsuccessful.</p>
<p style="text-align: justify;">Over the intervening years, since the <em>Gallagher</em> decision, Appellate Division jurisprudence has expanded upon the sole proximate cause defense, in situations where the plaintiff was given contradictory instructions by his superior, or if the plaintiff was following the superior’s example.</p>
<p style="text-align: justify;">This recent case by the Court of Appeals now addresses the issue of how the sole proximate cause defense applies in a scenario where the plaintiff did have a readily available safety device, but allegedly did not use it because “everyone” was using a less safe but quicker alternative. In <em>Biaca-Neto v. Boston Road II Hous. Dev. Fund Corp</em>., 34 N.Y.3d 1166 (N.Y. 2020), mod’g 176 A.D.3d 1 (1st Dep’t 2019), the plaintiff was allegedly injured in a fall while attempting to transition off an exterior scaffold located at the seventh floor of a building. It was undisputed that the plaintiff could have safely descended the scaffold staircase built for that purpose, or by means of a hoist. Instead, there was apparently a building cut-out that was seven to ten feet above the scaffold’s platform. The plaintiff and two coworkers testified that the workers customarily saved time by climbing up to the cut-outs to pass between the exterior scaffold and the interior of the building, which required them to unhook their safety belts. Of course, the defendants denied that this practice was tolerated or encouraged.</p>
<p style="text-align: justify;">The defendant property owner moved for summary judgment dismissing plaintiff’s Labor Law section 240(1) claim, which the Supreme Court, New York County granted. The Appellate Division, First Department panel split 3-2, affirming the lower court’s decision granting the defendant summary judgment. Among other issues, the dissenting justices disagreed on the legal issue of whether there was substantial evidence that the workers at this job site “routinely” entered the interior of the building through the window cut-outs, and whether the defendants’ potential acquiescence or ratification of this practice would undercut their sole proximate cause defense.</p>
<p style="text-align: justify;">The plaintiff again appealed, and in the 4-3 decision, the Court of Appeals ruled that the defendant’s summary judgment motion should have been denied with respect to the 240(1) claim. With regard to the sole proximate cause defense, the Court stated: “Given defendants’ purported acquiescence to this alleged practice, the general contractor’s standing order directing workers not to enter the building through the cut-outs is insufficient to entitle defendants to summary judgment.”</p>
<p style="text-align: justify;">Therefore, while this sentence in the holding, does not clearly create a rebuttal to the sole proximate cause defense, Labor Law defendants ought to be aware that the Court of Appeals has indicated that if a Labor Law plaintiff can establish that defendants were aware of and tacitly approved of workers utilizing a less safe shortcut rather than the available safety defenses, this could undercut their potential sole proximate cause defenses – and the plaintiff’s bar will be sure to take note of this legal opening.</p>
<p style="text-align: justify;">Thanks to Shira Straus for her contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>