Credit: xy/Adobe Stock The 'Forbidden Conduct' Defense: Is It a Subset of the 'Sole Proximate Cause' Defense or an Entirely Different Animal?
Are these really "sole proximate cause" defenses or are they an entirely different animal? That threshold question, which may or may not give rise to the same answer for all three variants of the Forbidden Conduct argument, matters.
November 03, 2022 at 10:00 AM
24 minute read
Settled law holds that "mere comparative negligence" is not a defense, and will not reduce the worker's recovery, when the subject injury arises from a failure to provide "proper protection" as to an elevation risk within the ambit of Labor Law §240. Yang v. City of New York, 207 A.D.3d 791, 794 (2d Dept. 2022); Pimentel v. DE Frgt., 205 A.D.3d 591, 593 (1st Dept. 2022). On the other hand, recovery under the statute will be barred if the worker's own negligence was the "sole proximate cause" of the subject injury. Barreto v. Metro. Transp. Auth., 25 N.Y.3d 426, 433 (2015).
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