Fourth Department Signals Expansion of Sole Proximate Cause Defense
A recent Appellate Division, Fourth Department, decision may signal an expansion of the “sole proximate cause” defense in Labor Law § 240(1) cases where a defendant alleges that a plaintiff’s failure to use available safety devices was the sole proximate cause of the accident.
Labor Law § 240(1) is an absolute liability statute governing falls at worksites. Any violation (by failing to provide safety devices to protect the worker from falling) results in absolute liability of the defendant.
To prevail on a Labor Law § 240(1) claim, a plaintiff “must establish that the statute was violated and that such violation was a proximate cause” of the injury. The Court of Appeals has held that there is no liability where “safety devices that plaintiff alleges were absent were readily available at the work site, … and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident.” In such a case, the plaintiff's negligence is the sole proximate cause of the injury.
In Scruton v Acro-Fab Ltd., 2016 N.Y. App. Div. LEXIS 7308 (4th Dep't Nov. 10, 2016), however, over the dissent of two Justices, the Fourth Department reversed summary judgment for plaintiff, finding a triable issue of fact as to whether plaintiff’s failure to use an available ladder was the sole proximate cause of his fall.
Plaintiff fell from the outer wall of a building extension when a roof truss he was installing began to tip. He apparently had one foot on the top of the wall and one foot on the truss. He was not using a ladder.
In Scruton, plaintiff’s own papers raised an issue of fact whether “plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so…”
The holding is significant due to several factors, noted in the dissent, which historically would have warranted summary judgment in favor of a Labor Law § 240(1) plaintiff. Although ladders may have been present at the work site, it appeared to be undisputed that “none had been erected for plaintiff's specific task.” There was no evidence that plaintiff had been trained or instructed to use a ladder in the job he was performing.
Plaintiff also testified that he didn’t use the ladder due to a “speed issue” and there was evidence that he had complained about the excessive speed of the project, which was the pace set by the employer.
To the extent Scruton may enlarge the sole proximate cause defense, defense counsel would be wise to assert it aggressively where applicable. We will be watching carefully to see whether, and to what extent, the New York Court of Appeals will further address this issue.
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