First Department Rejects “Recalcitrant Worker” Argument and Affirms Lower Court Holding
In a recent decision, the Appellate Division, First Department, affirmed a lower Court decision that granted plaintiff’s motion for summary judgment as to his Labor Law § 240(1) claims. In Linares v. Massachusetts Mut. Life Ins. Co., 2024 NY Slip Op 01609 (1st Dep’t 2024), plaintiff was hired by a subcontractor to perform sheetrock, taping and compound work in residential apartments. Plaintiff alleges that he was injured when he fell from the top of stacked, empty compound buckets that he was standing upon to perform taping and compound work in the upper areas of an apartment unit’s wall.
At the conclusion of discovery, the parties moved for summary judgment. In its decision, the Supreme Court, New York County held that plaintiff established his prima facie entitlement to summary judgment by virtue of defendants failing to provide him with an adequate safety device, specifically, a ladder, to perform his work.
The First Department agreed, holding that the defendants failed to raise a triable issue of fact despite submitting the following evidence:
- Ladders were available in the shanty within the building (an unoccupied apartment);
- Workers, including plaintiff, were instructed to use the ladders; and,
- Ladders were always readily available in the building, just several floors away from the apartments where plaintiff was assigned to work.
The First Department addressed defendants’ “recalcitrant worker” argument, holding that defendants failed to raise a triable issue of fact as to whether plaintiff, for no good reason, chose not to retrieve an available ladder. Plaintiff testified that he looked for an available ladder, but could not find one, and that prior to his accident he had twice asked his foreman for a ladder and the foreman assured plaintiff he would provide one, but never did. Moreover, plaintiff’s conduct in not retrieving a ladder himself was not the sole proximate cause of the subject incident, because the defendants’ violation of Labor Law § 240(1) precluded plaintiff’s conduct from being the sole proximate cause.
For those of you keeping track at home, mark down another case where the “sole proximate cause” and “recalcitrant worker” defenses to a Labor Law § 240(1) claim failed.
The Linares decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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