It is clear by virtue of a 2010 Court of Appeals' ruling that a claim premised upon an alleged violation of §240(1) of the Labor Law can be barred, in precisely defined circumstances, if the plaintiff-worker's failure to utilize a “readily available” safety device or elevating device was the “sole proximate cause” of his or her accident. Gallagher v. New York Post, 14 N.Y.3d 83 (2010). But what if there was no “readily available” safety or elevating device and the defendants instead blame the worker for his or her failure to construct such a device from materials that were “readily available” at the site? Can the worker's failure to properly construct the device bar his or her §240 claim?

That issue is the focus of this column. However, it is necessary to start with the settled and not quite settled parameters of the so-called sole proximate cause defense.

Derivation of the Defense. Labor Law §240(1) applies to certain specifically enumerated work activities including “erection, demolition, repairing, altering … of a building or structure.” The statute directs the “contractors and owners and their agents” to “furnish or erect, or cause to be furnished or erected for the performance of such labor … scaffolding, hoists, stays, ladders” and “other devices” which must “be so constructed, placed and operated as to give proper protection to a person so employed.”

Although the statute does not actually say that it is limited to elevation-related hazards, the Court of Appeals long ago reached that conclusion on the rationale that all of the listed devices were commonly used to elevate workers, materials, or both. Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 514-15 (1991). Per the now governing standard, the statutory command to “furnish or erect, or cause to be furnished or erected” the covered devices can give rise to liability only if the “plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential.” Runner v. New York Stock Exch., 13 N.Y.3d 595, 602 (2009).

Because of the extreme danger posed by the relatively narrow hazards to which it applies, “[t]he statute imposes absolute liability on building owners and contractors whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker.” Wilinski v. 334 E. 92nd Hous. Dev. Fund, 18 N.Y.3d 1, 7 (2011), quoting Misseritti v. Mark IV Const. Co., 86 N.Y.2d 487, 490 (1995). The “'purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves.'” Saint v. Syracuse Supply Company, 25 N.Y.3d 117, 124 (2015), quoting Panek v. County of Albany, 99 N.Y.2d 452, 457 (2003).

Yet, while the liability arising from a statutory breach is “absolute” and the worker's recovery can therefore not be reduced or avoided by proof of the worker's comparative negligence (Bland v. Manocherian, 66 N.Y.2d 452, 461 (1985); Cardona v. New York City Hous. Auth., 153 A.D.3d 1179 (1st Dep't 2017); Raia v. Berkeley Co-op Towers Section II, 147 A.D.3d 989, 992 (2d Dep't 2017)), it has long been understood that certain conduct on the worker's part can bar his or her statutory cause of action. Back in the 1990s, the Court of Appeals said that what it then called the “'recalcitrant worker' defense” could “allow a defendant to escape liability under section 240(1)” but that such defense “requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer.” Gordon v. E. Ry. Supply, 82 N.Y.2d 555, 562-63 (1993); Hagins v. State, 81 N.Y.2d 921, 922-23 (1993) (acknowledging the defense but stating that “that defense is limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner”). Nowadays, while recovery is still barred in the case in which the worker's injury was caused solely by his or her refusal to use an available safety device, that particular fact pattern has effectively been subsumed by the broader classes of cases in which the worker's misdeeds constitute the “sole proximate cause” of his or her injuries. E.g., Valente v. Lend Lease (U.S.) Const. LMB, 29 N.Y.3d 1104 (2017); Grove v. Cornell Univ., 17 N.Y.3d 875 (2011).

That begs the question of precisely what conduct apart from an outright “refusal” to use available safety equipment can bar recovery under the “sole proximate cause” defense. For purposes of analysis, I think it is helpful to group the “sole proximate cause” arguments into two categories, based upon the nature of the conduct that is claimed to constitute the “sole proximate cause” of the subject accident. Type I cases are those cases in which the worker is blamed for his or her failure to use an allegedly available elevating device or safety device. This includes, for example, the instance in which the worker chose to use a rickety wooden ladder that ultimately broke instead of a purportedly superior and available aluminum ladder (i.e., an available and better elevating device). The category also includes the worker who purportedly could have tied off but chose not to do so for no good reason (i.e., an allegedly available safety device).

Type II cases are all of those cases in which the conduct that is claimed to bar the worker's recovery does not fit within the above-defined boundaries of Type I conduct.

As we shall see, we now have a clear and easily applied standard for the Type I cases. However, the Type II standard remains a work in progress.

'Gallagher': When the Worker's Purported Conduct Consists of the Failure to Utilize an Allegedly Available Elevating or Safety Device. Where the worker's alleged wrong consisted of the failure to utilize an allegedly available elevation or safety device—what I have defined as Type I conduct—the Court of Appeals' 2010 ruling in Gallagher v. New York Post, 14 N.Y.3d 83 (2010), controls. The worker's conduct can bar his or her recovery only if,

(1) the device or devices in issue “were readily available at the work site, albeit not in the immediate vicinity of the accident,”

(2) plaintiff knew that the device or devices were “readily available” and “knew he [or she] was expected to use them,” and,

(3) plaintiff “chose not to do so” “for no good reason.” Gallagher, 14 N.Y.3d at 88.

The Gallagher court distilled that standard from its prior rulings concerning the “sole proximate cause,” principally including its 2004 ruling in Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35 (2004). In Cahill, the court held that the jury could have fairly found that the plaintiff's failure to use either a manlift or a safety line was the sole proximate cause of his accident because “a jury could have found 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.” Id. In Gallagher, where the plaintiff-worker was faulted for not using “safety harnesses with shock-absorbing lanyards,” the court reached the opposite conclusion because there was “no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them.” Gallagher, 14 N.Y.3d at 88.

As I write these words, Gallagher has been cited 80 times by New York courts, just including reported decisions. By the time this column appears in print, that number will likely be higher. The standard is relatively straightforward and, at least in my view, sensible [see note 1]. But the Type II situation is a very different story.

The 'Klein'/'Blake' Conundrum. Suppose the plaintiff-worker's allegedly disqualifying injury did not consist of failure to utilize an allegedly available safety or elevation device. Suppose the defense claim is, for example, that plaintiff's own placement or misuse of the ladder, scaffold, or other elevating device was the “sole proximate cause” of the accident. What then?

The answer largely depends on how one reconciles Klein v. City of New York, 89 N.Y.2d 833 (1996), and a couple of other Court of Appeals' decisions that preceded it with Blake v. Neighborhood Hous. Services of New York City, 1 N.Y.3d 280 (2003), and another decision that followed it.

In Klein, decided in 1996, there was one and only one cause of the subject accident. Plaintiff placed what was ostensibly a perfectly fine ladder on “gunk,” with the consequence that the ladder slipped out from under him, causing him to fall. Labor Law §240(1) literally requires the “contractors and owners and their agents” to see that the listed devices are “so 'constructed, placed and operated as to give proper protection' to a worker [emphasis added].” As the Klein court saw it, that meant that it was the responsibility of the owner and general contractor to ensure that the ladder was placed correctly, not the plaintiff's responsibility. The court noted that “the Legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.'” Klein, 89 N.Y.2d at 834-35, quoting Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520 (1985).

Klein followed several Court of Appeals decisions of similar ilk. In one, even assuming that the subject ladder “had been broken about a week earlier, and plaintiff had been instructed not to climb it unless someone else was there to secure it for him,” the court reasoned that “it cannot be said that plaintiff's alleged disregard of his supervisor's order was a supervening cause of the accident, since plaintiff's injuries were the direct result of the failure by [owner and employer] to supply a safe ladder or other device to give 'proper protection' to workers in plaintiff's position.” Stolt v. Gen. Foods, 81 N.Y.2d 918, 920 (1993). In another, where claimant tried to walk along the top of an unfinished abutment wall and fell in the process since the wall lacked railings, even assuming “that claimant had repeatedly been told not to walk across the abutment” the State could not “rely on claimant's own negligence in using an unsafe route to cross the road as a 'supervening cause' of his injuries, since the accident was plainly the direct result of the failure to supply guardrails or other appropriate safety devices.” Hagins, 81 N.Y.2d at 922-23.

Now, contrast those rulings with Blake, decided in 2003. Blake, 1 N.Y.3d 280. The plaintiff in Blake, who to the extent it matters was the contractor and owned the subject ladder, took an extension ladder that was in “proper working condition” and apparently failed to lock the extension clips in place, with the result that the ladder retracted and plaintiff fell. (While plaintiff claimed that he could not remember whether he had locked the clips in place, no one suggested any alternative cause of the accident and the jury ostensibly concluded that such was the cause of the accident.) Without distinguishing Klein, the Blake court ruled that the jury could properly conclude, as it did, that plaintiff's conduct was the sole proximate cause of his accident. The court explained: “If liability were to attach even though the proper safety devices were entirely sound and in place, the Legislature would have simply said so, or made owners and contractors into insurers.” Blake, 1 N.Y.3d at 291.

Blake was followed a few years later by Robinson v. E. Med. Ctr., 6 N.Y.3d 550 (2006). There, the plaintiff's use of a ladder he knew to be too short when taller and “adequate” ladders were “available for plaintiff's use at the job site” was deemed the sole proximate cause of the accident. Id. at 555.

Thankfully, to the extent that any of the above-noted rulings can be viewed as essentially involving the plaintiff's failure to use a purportedly available safety or elevating device, our problem ceases to exist. Cases of that kind can and should be resolved per the three-prong test articulated in Gallagher and Cahill. I think that at least Stolt (where plaintiff knowingly used a broken ladder) and Robinson (where plaintiff knowingly used a ladder that was too short) fall in that category.

But what of Klein and Blake themselves? In Klein, the plaintiff's placement of the ladder on “gunk” did not bar recovery since it was the owner and contractors' obligation to see that the ladder was properly “placed.” Yet, in Blake, the plaintiff's apparent failure to lock the clips of the extension ladder did bar recovery. What, precisely, made the failure to lock the extension clip in Blake worse or in some sense significantly different than the negligent placement of the ladder in Klein?

Was it that the latter and not the former fell directly within the statutory directive that the listed devices be “placed” as to provide proper protection? The Court of Appeals provided some support for that notion in Nicometi v. Vineyards of Fredonia, LLC, a 2013 decision in which it described Klein as having rested on the defendant's failure to ensure “proper placement.” 25 N.Y.3d 90, 101 (2013) (emphasis by the court). Or perhaps one can reason that Blake was a Type I case, the rationale being that the extension clips were a “readily available” “safety device.”

Although we are now 14 years post-Blake, there still is no clear answer as to what, precisely, distinguishes Blake from Klein. Left without any clear distinction as to when and how the statutory duty to properly “place[]” and “operate[]” the elevating device shifts from defendant to plaintiff, the departments of the Appellate Division have reached irreconcilable results in virtually identical fact patterns. One such example, which I addressed in two prior columns (“First Department's 3-2 Rulings: Fault Lines of the Law,” N.Y.L.J. (May 3, 2016); “The Closed Ladder Accident: Who is Responsible?,” N.Y.L.J. (Oct. 11, 2013)), is the so-called “closed ladder” accident in which the worker uses and then falls from an A-frame ladder which he or she could not open within the space constraints of the job. The Appellate Division for the First Department has tended to treat that event as a Klein-like event that gives rise to liability, (e.g., Howard v. Turner Const. Co., 134 A.D.3d 523 (1st Dep't 2015)), whereas the Appellate Division for the Second Department has generally deemed that a Blake-like accident that does not give rise to liability. Scofield v. Avante Contr., 135 A.D.3d 929 (2d Dep't 2016).

The Worker's Alleged Failure to Properly Construct the Safety Device. With the above as context, we now turn to the question posed at the beginning of this column. Should recovery be barred where the plaintiff was not provided with a properly constructed elevation or safety device but was instead provided with materials to construct the device?

On its face, the statute seems to preclude such a result. The statute requires the contractors and owners to “furnish or erect, or cause to be furnished or erected” the “scaffolding, hoists, stays, ladders” and so forth that are “so constructed, placed and operated as to give proper protection.” It does not require merely that they provide the materials that the workers would need to construct their own scaffolding and ladders.

That suggested extension of the sole proximate cause defense would also be inconsistent with the oft-stated purpose of Labor Law §240(1): “to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves.” Saint, 25 N.Y.3d at 124, quoting Panek, 99 N.Y.2d at 457. Indeed, the argument for saddling the worker with the ultimate responsibility for properly constructing his or her own scaffold or ladder seems, at least to me, even less palatable than the attempt in Klein to render the worker responsible for proper placement of the device.

It is thus hardly surprising that the First and Fourth Departments have expressly rejected that extension of the sole proximate cause defense. Bernard v. Town of Lysander, 124 A.D.3d 1289, 1290 (4th Dep't 2015), quoting Collins v. West 13th Street Owners, 63 A.D.3d 621, 622 (1st Dep't 2009) (where there was no ready-to-use platform from which plaintiff could work, plaintiff or his coworker therefore constructed a “makeshift scaffold,” and defendant charged that plaintiff's own negligence in failing to construct a better scaffold was the sole proximate cause of the accident; “'[t]he onus [was not] on plaintiff to construct an adequate safety device, using assorted materials on site [that were] not themselves adequate safety devices but which may [have been] used to construct a safety device”); Collins, 63 A.D.3d at 622 (similar facts and holding); see also Medina v. 42nd and 10th Assoc., 129 A.D.3d 610, 611 (1st Dep't 2015).

That view also finds support in the Court of Appeals' 2016 ruling in Batista v. Manhattanville Coll., 28 N.Y.3d 1093, 1094 (2016), mod'g 138 A.D.3d 572 (1st Dep't 2016). That was a case in which the plaintiff constructed the subject scaffold. The asserted defense was that “plaintiff disregarded instructions to use only pine planks for flooring on the scaffold he was constructing” or that plaintiff “otherwise knew that only pine planks were to be used for flooring.” Batista, 138 A.D.3d 572. Defendant also charged that “plaintiff was responsible for checking the planks at the site for knots” and that he had purportedly “used one with a knot in it.” Id. Notwithstanding its prior and ostensibly inconsistent ruling in Collins, the First Department held that the defense was legally viable and that defendant had raised issues of fact, including “whether more pine planks were readily available to him [plaintiff] either at the site, as his supervisor testified … or at his employer's yard, as a coworker testified.”

On further appeal in Batista, the Court of Appeals ruled that plaintiff should have been awarded summary judgment. The ruling consisted of nothing more than the conclusion itself: “Defendants failed to raise a triable issue of fat whether the plaintiff was the sole proximate cause of his accident.” Yet, in the context of the case, the ruling seemingly constitutes a rejection of the attempt to render the worker responsible for the scaffold's construction.

There is also, I should note, some authority—perhaps distinguishable and perhaps not; one can make arguments each way—from the Second and Third Departments for the opposite view. Melendez v. 778 Park Ave. Bldg., 153 A.D.3d 700 (2d Dep't 2017) (where the court ruled that “defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law §240(1) cause of action by demonstrating that the plaintiff was the sole proximate cause of the accident that caused his alleged injuries, since he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam, rather than standing upon the secured planking available to him, which he had used in the minutes leading up to the accident”); Silvia v. Bow Tie Partners, 77 A.D.3d 1143, 1144-46 (3d Dep't 2010) (where plaintiff was “injured when a plank on which he was standing as part of a makeshift scaffold broke beneath him,” the defendant claimed that plaintiff was told “not to use it [the plank] because it was cracked,” and “[t]here was also deposition testimony that there were Occupational Safety and Health Act compliant planks next to a dumpster just outside a doorway adjacent to the area where plaintiff was working,” defendants thus “raised questions of fact with regard to whether there was a statutory violation and whether plaintiff's conduct was the sole proximate cause of his injuries”). Yet, neither of those decisions gives any indication that the court actually intended that the duty to properly construct the safety device can be passed from the contractors to the workers or, indeed, that the court was cognizant of crossing any boundary. Nor did the Second Department ruling, which was post-Batista, address or distinguish that case.

In all, I recognize that the difficulty in reconciling Klein with Blake creates a gray area within the realm of what I have characterized as the Type II cases, a gray area in which the courts can and have disagreed as to the proper parameters of the sole proximate cause defense. However, I do not think that this particular “sole proximate cause” variant falls within that gray area because I do not think that either the statute itself or the governing Court of Appeals' decisions is consistent with the attempt the place the onus on the workers themselves to properly construct the elevating and safety devices required for safe performance of the work.

Endnotes:

1. I note, however, that the Second Department recently applied a very different standard. Presumably because Labor Law §240 is not a negligence-based statute and “mere” comparative negligence cannot bar recovery, the Gallagher court framed as an element of the defense that the plaintiff “knew he [or she] was expected to use [the safety device].” Nonetheless, the Second Department recently ruled that defendant presented a viable sole proximate cause defense because “the plaintiff, based on his training, prior practice, and common sense, knew or should have known to use pipe scaffolds instead of Baker scaffolds [emphasis added].” Nalvarte v. Long Is. Univ., 153 A.D.3d 712 (2d Dep't 2017).