In a decision that was recently published in the New York Law Journal, Justice Martin Schneier of Kings County (Brooklyn) held that even though the plaintiff construction worker was at least partially to blame for his own accident, he was nevertheless entitled to judgment in his favor as a matter of law on his Labor Law §240(1) violation claim. (For additional information on this topic, see "How to Prove a Construction Site Accident Case").

In Cortes v. McGuiness Condos, LLC, the plaintiff construction worker ignored his bosses' instructions to leave the area where the accident ulimately occurred while bricks were being hoisted, and he was later hurt when one of the bricks that was being hoisted slipped from its tong, hitting the plaintiff in the head.

Admittedly, at first blush it seems rather strange that the plaintiff's claim would survive a motion to dismiss, let alone that a judge would automatically find in his favor. In that regard, the Court's analysis is informative:

Citing a 2003 opinion from New York's highest court (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y. 3d 280 [2003]), Justice Schneier pointed out that "it is conceptually impossible" for the defendants to be guilty of a worksite safety violation (which serves as a proximate cause for a plaintiff's injury), and for the plaintiff's own conduct to be deemed the sole cause for the accident.  And once the plaintiff establishes that his injury was caused, at least in part, by virtue of the defendant's violation of a specific safety statute, the contractor and owner will be held liable ("absolute liability"), without regard for the plaintiff's role in the accident. (Bland v. Manocherian, 66 N.Y.2d 452, 459 [1985]; Moniuszko v. Chatham Green, Inc., 24 A.D. 3d 638, 639 [2d Dept 2005]).

But Justice Schneier's rejection of the defendants' claim that the plaintiff's claim should be barred on the grounds that he was a 'recacitrant worker' who, by dint of ignoring his employer's instructions, effectively refused to use the safety devices that were made available, is even more telling. Quoting a different opinion from the Court of Appeals, the Court stated as follows:

"an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense."

From this decision, it is clear that one should never assume that a worksite injury case either has - or lacks - merit until they have consulted with an attorney that is knowledgeable about New York's Labor Laws.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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