In a recent disputed decision, the New York Court of Appeals reversed a decision of the First Department that dismissed a lawsuit on summary judgment, instead finding that there was an issue of fact as to whether a plaintiff was the sole proximate cause of his injuries. In Biaca-Neto v. Boston Rd. II Hous. Dev. Fund Corp., 176 A.D.3d 1, 107 N.Y.S.3d 7 (1st Dep’t 2019) the First Department dismissed claims under both Labor Law Sections 200 and 240(1).
In this case, a plaintiff sued a development company and a general contractor after he was injured on scaffolding that he was assembling. Here, adequate safety devices were available, as plaintiff had a lifeline attached to a harness and the perimeter of the scaffold was enclosed by protective framing and basketing. However, according to a co-worker, plaintiff injured his shoulder when he unhooked his safety line and climbed onto the scaffold’s frame to enter the building through the window cut-out. The plaintiff’s supervisor testified that entering the building through a window was forbidden and would result in that worker being removed from the job site; workers were instead supposed to use the scaffold staircase. He also testified that he was unaware of workers using such a shortcut.
Even though there was conflicting testimony regarding how the accident occurred, as plaintiff claimed that he fell as opposed to bumping his shoulder, the First Department found that Labor Law Section 240 was not implicated since plaintiff’s account did not connect to a defect in a required safety device. Plaintiff testified that entering the building through the window was inappropriate, meaning that he had no good reason to avoid the safe entry method and that he would not have been injured if he followed site protocol.
On appeal, the New York Court of Appeals reversed the decision of the First Department regarding the Labor Law Section 240(1) claim, instead holding that summary judgment should have been denied. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 144 N.E.3d 363, 2020 NY Slip Op 01116 (2020). The Court of Appeals found that there was an issue of fact regarding whether plaintiff was advised of the standing order forbidding entrance through the windows. The Court also noted that there were sworn statements from two of plaintiff’s co-workers stating that they entered the building using its windows. As a result, the Court ruled that the Labor Law Section 240(1) cause of action was improperly dismissed since a triable issue of fact exists as to whether plaintiff’s conduct was the sole proximate cause of his injuries.
Judge Michael J. Garcia issued a dissent, stating that the record clearly shows that plaintiff’s negligence was the sole proximate cause of his injuries. He argued that there is no requirement in Labor Law Section 240(1) to expressly advise workers that reckless behavior is prohibited and that the majority erred by suggesting that owners and contractors must explicitly prohibit all conceivable forms of mischief. Judge Garcia also argued that similar behavior from co-workers was irrelevant, stating that summary judgment should not be defeated by pointing to other workers who also engage in unsafe behavior.
The Court of Appeals reversal of the First Department’s decision in Biaca-Neto exemplifies the difficulty a defendant faces when attempting a dismissal of a Labor Law Section 240(1) claim pursuant to a motion for summary judgment. Even where a plaintiff ignores all common sense and engages in unnecessary risky behavior, the plaintiff may still be allowed to proceed if (1) it is possible that plaintiff was not directly given safety warnings; or (2) if another co-worker engages in the same risky behavior.
