Scaffold Law Sole Proximate Cause

The Sole-Proximate-Cause Defense to Absolute Liability Under New York Labor Law § 240(1)

New York’s Scaffold Law commands that covered contractors and owners "shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" N.Y. Labor Law § 240. The duty is nondelegable and the liability it creates is conventionally called absolute, but the Court of Appeals has "repeatedly explained that “strict” or “absolute” liability is necessarily contingent on a violation of section 240 (1)": "[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)," and "an accident alone does not establish a Labor Law § 240 (1) violation or causation" Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 (N.Y. 2003).

The sole-proximate-cause defense is the corollary of that violation requirement. Because comparative fault is no answer to the statute, the only escape lies in negating the violation itself: Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 (N.Y. 2003) held that "[e]ven when a worker is not “recalcitrant” ... there can be no liability under section 240 (1) when there is no violation and the worker’s actions ... are the “sole proximate cause” of the accident," because "it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [plaintiff’s] injury) to occupy the same ground as a [plaintiff’s] sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it." At summary judgment the defense operates against a presumption favoring the worker: once a ladder or scaffold collapses for no apparent reason, the defendant "may defeat [the] [plaintiff’s] motion for summary judgment only if there is a plausible view of the evidence — enough to raise a fact question — that there was no statutory violation and that [the] [plaintiff’s] own acts or omissions were the sole cause of the accident."

Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (N.Y. 2004) recast the recalcitrant-worker doctrine as an application of that principle, holding that "where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240 (1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred." "The controlling question, however, is not whether plaintiff was “recalcitrant,” but [whether] a jury could have found that his own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of his accident" — there, "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." Robinson v. East Medical Center, 6 N.Y.3d 550 (N.Y. 2006) applied the rule as a matter of law: the statutory "prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them," so where "there were adequate safety devices — eight-foot ladders — available for [the plaintiff’s] use at the job site," his "own negligent actions — choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder’s top cap in order to reach the work — were, as a matter of law, the sole proximate cause of his injuries."

The defendant’s proof burden is exacting on both the availability of the device and the worker’s knowledge. Gallagher v. New York Post, 14 N.Y.3d 83 (N.Y. 2010) confirmed that "[l]iability under section 240 (1) does not attach when the safety [devices] that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident," yet reinstated the worker’s claim because "[t]here is 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" — a standing order to project foremen, never shown to have been conveyed to the workers, does not establish the expectation. And because the defense negates the violation, it fails whenever a breach of the statute contributed to the fall: Barreto v. Metropolitan Transportation Authority, 25 N.Y.3d 426 (N.Y. 2015) reiterated that "where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability," but held the Appellate Division erred in finding sole proximate cause "in light of the undisputed fact that it took at least two PAL workers to move the manhole cover (given its weight), and plaintiff’s testimony that the lights had been turned off prior to disassembly of the containment enclosure."

New York’s appellate courts now administer the defense through a four-element formula. Amaro v. New York City Sch. Constr. Auth., 229 A.D.3d 746 (N.Y. App. Div. 2024) repeated that "[a] plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she (1) had adequate safety devices available, (2) knew both that the safety devices were available and that [he or she was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had [he or she] not made that choice," and granted the injured worker summary judgment where a scaffold plank broke suddenly and "the defendants did not present evidence that the injured plaintiff was recalcitrant in the sense that he was instructed to tie and untie his lanyard to traverse the scaffold and refused to do so." The decisions thus mark out a narrow but complete defense: the owner or contractor who actually furnished adequate devices, and who can prove the worker’s site-specific knowledge of their availability, the expectation of their use, and an unexplained refusal, owes nothing under the statute; the defendant who leaves any statutory gap — an absent guardrail, an instruction never conveyed, a device too heavy or too remote for practical use — answers in full, however careless the worker.