"Recalcitrant Worker" Defense to NY Labor Law § 240(1) a After Biaca-Neto

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The New York Court of Appeals has just erected “new and impossible barrier[s]” for defendants to obtain summary judgment in personal injury cases arising under New York’s Labor Law. On February 18, 2020, the Court of Appeals issued a 4-3 decision in the Waldemar Biaca-Neto et al. v. Boston Road II Housing Development Fund Corporation et al. case. This decision highlights the high burden that defendants face at the summary judgment stage in a Labor Law case, even with highly favorable facts. Going forward, plaintiffs will likely argue that this decision alters the landscape in their favor.

While working on a construction site, Plaintiff observed his coworker pull himself up to a scaffold beam (seven feet above the scaffold platform), unhook his safety belt, and enter the building through a window cut-out. Plaintiff then attempted the same maneuver but slipped and fell to the scaffold platform. Plaintiff testified that he knew he “wasn’t supposed to pass through there.” Prior to the incident, Plaintiff’s employer instituted a standing order that employees were not permitted to enter the building through the window cut-out. However, given that it was Plaintiff’s third day on the job site, there was no evidence that his employer had advised him of the same. It was undisputed that there were two fully functional safety devices for descending from the platform provided to Plaintiff: a scaffold staircase and a hoist.

New York Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents whether or not they supervise or control the work (in other words, the duty is nondelegable). Blake v. Neighborhood Hous. Servs. of New York City, Inc., 1 N.Y.3d 280 (2003). Moreover, the plaintiff's own negligence does not furnish a defense. Id. However, it is still necessary “for the plaintiff to show that the statute was violated and that the violation proximately caused his injury.” Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39 (2004). No liability attaches where plaintiff’s own actions are the sole proximate cause of the accident. Id. Under the so-called “recalcitrant worker” defense, a defendant has no liability: “when plaintiffs: (1) had adequate safety devices available, (2) knew both that the safety devices were available and that [they were] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had they not made that choice." Biaca–Neto v Boston Road II Housing Development Fund Corporation, No. 34 SSM 30, 2020 N.Y. Slip Op. 01116, 2020 WL 768105 (N.Y., Feb. 18, 2020).

In Biaca–Neto, the Court of Appeals reversed the order granting defendant summary judgment, finding a triable issue of fact “as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the apparent accepted practice of entering the building through the window cut-outs from the scaffolding.” The majority explained that the workers were utilizing this same practice coupled with the defendant’s “purported acquiescence” to the workers’ use of this practice created an issue of fact. Additionally, whether there was a standing order in existence or not, the accepted practice “could have negated the normal and logical inclination to use the scaffold, stairs, or hoist instead of the cut-outs.”

In a strong dissent, Judge Garcia cited the Court’s precedence for the proposition that under Labor Law § 240(1) an owner or a contractor who has provided adequate safety devices should not be held liable for failing to insist that a recalcitrant worker use them. For example, in Cahill v. Triborough Bridge & Tunnel Auth., the court reversed award of summary judgment to the plaintiff, where he “chose not to use” an available safety device. 4 N.Y.3d 35 (2004). Similarly, in Montgomery v. Federal Express Corp., the court denied plaintiff summary judgment because plaintiff “chose to stand on an inverted bucket, and then jump down,” rather than use available ladder. 4 N.Y.3d 805 (2005). Finally, in Robinson v. East Med. Ctr., LP, the court held that as a matter of law, plaintiff was the sole proximate cause of his injuries since he chose to use a six-foot ladder that he knew was too short for the work to be accomplished and an adequate safety device (eight-foot ladder) was available for the plaintiff's use. 6 N.Y.3d 550 (2006). Judge Garcia observed, “[p]laintiff chose convenience over safety, and he alone is responsible for the resulting injuries.” Specifically, there were two fully functional safety devices for descending from the platform provided to Plaintiff: a scaffold staircase and a hoist. Indeed, plaintiff built the staircase himself and utilized it earlier the same day. Furthermore, plaintiff had conceded at his deposition that “it would have been much safer to just descend the stairs and go back the way [he] came.” Instead, plaintiff chose to take a shortcut and detach his safety harness.

The Biaca–Neto decision is particularly drastic given plaintiff’s own testimony that he knew he “wasn’t supposed to pass through there [the window cut-out].” The majority reasoned that it was the factfinder’s job to determine if this statement unambiguously establishes that he knew he was expected to use the safety devices. This decision will likely be used by plaintiffs to argue that the analysis for whether a plaintiff was the proximate cause of his injuries has been altered. Indeed as the dissent states, the finding “that owners and contractors must expressly prohibit all conceivable forms of mischief — erects a new and impossible barrier that finds no support in our case law."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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