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Worker Who Refuses To Leave Dangerous Area Not A Recalcitrant Worker In New York

October 28, 2009

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In Cortes v. McGuiness Condo,LLC, the plaintiff, a construction worker in New York, was injured when a brick that was being hoisted fell from above and struck the plaintiff on the hard hat, causing injury.
The plaintiff moved for summary judgment on his Labor Law 240 (1) claim against the defendants. In order to recover on the Labor Law 240 (1) claim, the plaintiff must prove that the defendants breached a statutory duty to provide adequate safety devices and that the breach was a proximate cause of the injury. Justice Schneier sitting in Supreme Court, Kings County held that the plaintiff met this burden.
In opposition, the defendants argued that the plaintiff was the sole proximate cause of his injury and was a recalcitrant worker. To support this argument, the defendants claimed that the plaintiff was directed to leave the area while the bricks were hoisted. However, the court held that the finding that the defendants failed to provide an adequate safety device precluded a finding that the plaintiff was the sole proximate cause.
Moreover, the recalcitrant worker defense requires the defendants to show that the plaintiff refused safety devices provided by the owner or employer. In this case, there was no showing that such devices were offered to the plaintiff. In fact, evidence of instructions to the plaintiff to leave the area were insufficient to support the recalcitrant worker defense.
Maju Varghese contributed to this post.
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