1 No. 174
Timothy Cahill,
Respondent, v. The Triborough Bridge and Tunnel
Authority,
Appellant.
2004 NY Int. 162
December 21, 2004
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Kenneth Arthur Rigby, for appellant. Christopher A. Marothy, for respondent.
R. S. SMITH, J.:
We decide in this case 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.
Facts and Procedural History
Since we are reviewing a grant of summary judgment in
plaintiff's favor, we state the version of the facts most
favorable to defendant that the evidence will support. Plaintiff was employed in the reconstruction and repair
of the Triborough Bridge. His work required him to go up and
down wall-like structures known as "forms." A mechanical device
called a "man lift" was sometimes available for this purpose, but
when it was unavailable employees were expected to climb and to
descend by using safety lines affixed to the forms. Employees
wore safety harnesses, equipped with lanyards that could be
attached to a hook on the safety line. When the lanyard was
attached, the safety line would prevent the worker from falling
more than a short distance. With other workers on the Triborough Bridge
construction site, plaintiff attended frequent safety talks that
included instruction in the use of safety lines. In addition,
several weeks before the accident involved in this case,
plaintiff's supervisor, Anthony Dellamorte, "caught him" climbing
a form without using a safety line. (Dellamorte remembered this
incident as "a month and a half" before the accident; plaintiff
thought it was "less than a month" before.) Dellamorte explained
to plaintiff the need to attach his lanyard to the safety line
when climbing, and plaintiff, for the time being, complied.
On the day of the accident, plaintiff was working
inside the upper part of a form, applying grease from a bucket to
certain rods. He ran out of grease, went down to the ground to
refill his bucket, and started to climb up again. The man lift
was in use elsewhere, but plaintiff could readily have used a
safety line to climb; such a line was attached to the side of the
form where plaintiff climbed, some 10 feet away. Near the safety
line were horizontal ribs in the structure on which plaintiff
could have rested his grease bucket as he went up. Plaintiff chose not to use a safety line. Instead, he
used a "position hook" on his safety harness; this hook was
designed not for use in climbing, but to hold plaintiff
stationary while he worked. His procedure was to connect the
position hook to the form; put his grease bucket on a nearby
ledge; climb to the next cross beam; remove the position hook and
reinsert it at a higher point; move the grease bucket up a level;
and repeat the process. He fell while climbing, from a height of
approximately 10 to 15 feet, and was injured. Plaintiff sued defendant, the owner of the Triborough
Bridge, on several theories, including an alleged violation of
Labor Law § 240(1). Supreme Court granted summary judgment for
plaintiff on the § 240(1) claim, rejecting the argument that
plaintiff was a "recalcitrant worker." The Appellate Division,
with one judge dissenting, affirmed, holding that "the
recalcitrant worker defense is not applicable" because defendant
did not show that plaintiff had "'disobeyed an immediate
instruction to use a harness or other actually available safety
device'" (quoting Sanango v 200 E. 16th St. Hous. Corp., 290 AD2d
228 [1st Dept 2002])(emphasis added). The Appellate Division
granted leave to appeal on a certified question. We now reverse.
Discussion
Labor Law § 240(1) provides in relevant part:
"All contractors and owners and their agents
. . . in the erection, demolition, repairing,
altering, painting, cleaning or pointing of a
building or structure 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."
As we explained in Blake v Neighborhood Hous. Servs. of
New York City, Inc. (1 3 280 [2003]), this section creates a
liability that is strict, or absolute, in two senses: the duty
it imposes is non-delegable, and thus contractors and owners are
liable under the statute whether or not they supervise or control
the work; and where an accident is caused by a violation of the
statute, the plaintiff's own negligence does not furnish a
defense. It is still necessary, however, for the plaintiff to
show that the statute was violated and that the violation
proximately caused his injury. As we held in Blake, where a
plaintiff's own actions are the sole proximate cause of the
accident, there can be no liability.
Cases upholding the so-called "recalcitrant worker"
defense exemplify this rule. The Appellate Division held in
Smith v Hooker Chems. & Plastics Corp. (89 2 361, 365 [4th
Dept 1982][Simons, J.]) that an owner who has provided safety
devices is not liable for failing to "insist that a recalcitrant
worker use the devices." Later cases make clear our approval of
this holding ( see Stolt v General Foods Corp., , 81 NY2d 918
[1993]; Hagins v State of New York, , 81 NY2d 921 [1993]). The word "recalcitrant" fits plaintiff in this case
well. He received specific instructions to use a safety line
while climbing, and chose to disregard those instructions. He
was not the less recalcitrant because there was a lapse of weeks
between the instructions and his disobedience of them. 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. We noted in Blake that
"(e)ven when a worker is not 'recalcitrant' . . . there can be no
liability under § 240(1) when there is no violation and the
worker's actions (here, his negligence) are the 'sole proximate
cause' of the accident" (1 3 at 290). Here, 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. Those factual
findings would lead to the conclusion that defendant has no
liability under Labor Law § 240(1), and therefore summary
judgment should not have been granted in plaintiff's favor. Accordingly, the order of the Appellate Division should
be reversed with costs, plaintiff's motion for summary judgment
denied, and the certified question answered in the negative.