Court Clarifies That Scaffold Law Claims Fail Where Worker Was “Sole Proximate Cause” Of Injuries
21 November 2023
Last month, this column discussed how Sections 200, 240(1), and 241(6) of New York’s Labor Law, which are commonly referred to as New York’s “Scaffold Law”, apply only to workers, and not to third parties who may also be on the project site (such as a building inspector, in that case). While this holding can offer some relief to contractors and property owners, it is widely accepted that when the victim of the injury is, in fact, a worker, there is nothing much left to be done other than to pay the worker for the injuries suffered. In that regard, many contractors and owners believe that deploying safety measures above and beyond what are minimally required to satisfy regulatory requirements (or someone’s own moral compass) are futile. However, the logic behind the Scaffold Law is that the contractor and owner are responsible to deploy such safety measures “as to give proper protection to a person so employed”. Accordingly, the question remains as to whether contractors and owners are liable where they could have done nothing else to prevent the accident. A trial court, in Becker v Cornell University, answers that question by reminding us that where the worker is the sole proximate cause of the injuries, no recovery can be had.
Lori Becker, a sheet metal worker since 2010, found herself installing architectural sheet metal on a roof dormer at Cornell University’s Sage Hall in December of 2019. While performing her work, her ladder, which she had set up, slipped and fell approximately six feet to a separate roof below, and then slid another 20 feet, taking Becker for a “sled ride”. Becker sustained multiple fractures of her right leg as a result of the fall.
Becker testified at her deposition that she had been trained on the proper use and securing of ladders, including OHSA-30 training. She also testified that she had used this same ladder each day while on this jobsite, but did not secure it on the day of her injury—although she had previously secured this ladder with a rope, screw and washer. Ropes, screws, and washers of the type she used to secure the ladder were readily available on the job site. She did not secure the ladder at the time of her injury because the roof was complete and she did not want to make a hole. However, she acknowledged that she could have patched any hole that she made to secure the ladder. This failure to secure the ladder violated her employer, Welliver McGuire’s, safety policy (which she acknowledges having received), which stated unequivocally “all ladders must be tied off at or near the top of the ladder to prevent slippage”.
The project superintendent confirmed that Welliver McGuire had a policy that required that ladders be secured, and that although he had seen Becker tie off the ladder on previous occasions, he had to instruct her to tie off the ladder before her accident (which she clearly did not do). As to Becker’s rationale for not tying off the ladder (making a hole in the roof), the superintendent testified that the area where she should have placed the screw was going to be patched anyway, so a screw hole would not have been an issue.
After discovery, both parties moved for summary judgment. On the one hand, Becker argued that as the ladder fell, she met her burden on the motion. Conversely, Cornell argued that Becker’s failure to tie off the ladder was the sole proximate cause of her accident.
The court denied Becker’s motion, and granted Cornell’s motion for summary judgment dismissing the complaint. In doing so, the court acknowledged that generally a fall from a ladder, alone, is enough to establish a violation of the Scaffold Law. However, the court cited a previous Court of Appeals holding rejecting the proposition that “every ladder injury leads ineluctably to liability under [the Scaffold Law]”. After doing so, the court, citing well established case law holding that “[p]laintiff will be considered the sole proximate cause of her injuries, and there will be no liability under the Labor Law, where the evidence establishes that ‘plaintiff had adequate safety devices available; that [she] knew both that they were available and that [she] was expected to use them; that [she] chose for no good reason not to do so; and that had [she] not made that choice [she] would not have been injured’”, held that as the materials to tie off the ladder were readily available at the job site, and as Becker refused to use them although she had used them previously (which also served as an acknowledgement of the adequacy of these materials), she was the sole proximate cause of her injuries. As such, she could not recover under the Scaffold Law.
It is no exaggeration to state that the Scaffold Law is viewed as the bane of New York’s construction industry. Because of its absolute liability, the Scaffold Law does not permit the consideration of whether the plaintiff also had any comparative fault for his or her injuries, or how much effort the contractor put into safety, or otherwise preventing the accident in the first place. Rather, when arguing that the plaintiff was the sole proximate cause of the accident, the case law makes it clear that “sole” proximate cause means sole—i.e., that there can be no other device, etc., that would have provided greater protection than that which was available. Likewise, there is a similar volume of case law holding that simply failing to follow general safety instructions is not sufficient, and that the worker must refuse to use that which she was directed to use (and was available). Stated differently, the contractor and owner not only cannot have had any contribution to the happening of the accident—the accident had to have happened in spite of the efforts of the owner and the contractor. Clearly, this is a hard burden to meet, which is why victories on sole proximate cause arguments are rare (but not impossible). For this reason, contractors must document their safety plans and procedures, and communicate them to employees and job site contractors—and do so on an ongoing basis.