The New York Court of Appeals has just created a "new and impossible obstacle[s]" for the defendant to obtain summary judgment in a personal injury case under New York labor law. On February 18, 2020, the Court of Appeal made a 4-3 ruling in the case of Waldemar Biaca-Neto et al. v. Boston Road II Housing Development Fund Corporation, etc. case. This decision highlights the heavy burden the defendant faces in the summary judgment stage of labor law cases, even if the facts are very favorable. Looking to the future, the plaintiff may argue that this decision has changed the situation in their favor.

While working on a construction site, the plaintiff observed that his colleague pulled himself onto the scaffold beam (seven feet above the scaffold platform), unfastened the seat belt, and then entered the building through the window cutout. The plaintiff subsequently tried the same operation but slipped and fell on the scaffolding platform. The plaintiff testified that he knew he "should not pass there." Before the incident, the plaintiff’s employer made a long-term order prohibiting employees from entering the building through window cuts. However, given that this is the third day of the plaintiff’s work site, there is no evidence that his employer had made the same proposal to him. It is indisputable that the platform provided to the plaintiff has two fully functional safety devices: a scaffolding staircase and a lift.

New York Labor Law § 240(1) imposes strict or absolute responsibilities on general contractors, owners and their agents, regardless of whether they supervise or control the work (in other words, the responsibility is not delegated). Black v. Neighborhood House. Serve. New York City Corporation, 1 NY3d 280 (2003). In addition, the plaintiff’s own negligence cannot be used as a defense. ID. However, it is still necessary to "let the plaintiff prove that he violated the regulations and the violation directly caused his injury." Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 (2004). If the plaintiff’s own behavior is the only direct cause of the accident, he shall not bear any responsibility. ID. Under the defense of the so-called "stubborn worker", the defendant assumes no responsibility: "When the plaintiff: (1) has sufficient safety devices available, (2) knows that safety devices are available and [they] expect to use them, (3) no chance They choose not to do so for no reason, and (4) If they do not make this choice, they will not be hurt.” Biaca-Neto v Boston Road II Housing Development Fund Corporation, No. 34 SSM 30, New York State Document Number 01116 in 2020, 2020 WL 768105 (New York State, February 18, 2020).

In the Biaca-Neto case, the Court of Appeal overturned the order granting the defendant summary judgment and found a trialable question of fact, namely, "Does the plaintiff know that he should use the security device provided to him, despite the practice of entering the building? Obviously it has been accepted through the window cuts in the scaffolding." Most people explained that the workers are using the same practice, plus the defendant "claimed acquiescence" to the workers to use this practice, which constitutes a question of fact. In addition, regardless of whether there is a routine or not, the accepted practice "may deny the normal and logical tendency to use scaffolding, stairs, or lifts instead of incisions."

In a strong objection, Judge García cited the court’s priority, that is, in accordance with Article 240(1) of the Labor Law, the owner or contractor who provides adequate safety devices should not require stubborn workers to use Take responsibility for these devices. For example, in the Cahill v. Triborough Bridge & Tunnel Auth. case, the court overturned the plaintiff’s summary judgment ruling, and the plaintiff “opted not to use” available security devices. 4 NY3d 35 (2004). Similarly, in Montgomery v. FedEx, the court rejected the plaintiff’s summary judgment because the plaintiff “choose to stand on an inverted barrel and then jump off” instead of using an available ladder. 4 NY3d 805 (2005). Finally, in the Robinson v. East Med case. Ctr., LP, the court held that as a legal issue, the plaintiff was the only proximate cause of his injury because he chose to use a six-foot-long ladder. He knew that the ladder was too short to complete the work and provided adequate safety devices (eight feet). The long ladder) is available to the plaintiff. 6 NY3d 550 (2006). Judge Garcia observed that “[plaintiff] chose convenience rather than safety, and he himself was responsible for the harm caused.” Specifically, the platform provided to the plaintiff had two fully functional safety devices: scaffolding stairs and elevators. . In fact, the plaintiff built the stairs himself and used it earlier the same day. In addition, the plaintiff admitted in his testimony that “it would be much safer to go straight down the stairs and follow the way [him] came back.” Instead, the plaintiff chose to take a shortcut and take off his seat belt.

Taking into account the plaintiff’s own testimony, he knew that he “should not go through there (the cut in the window)”, so Biaca-Neto’s decision was particularly fierce. Most people believe that it is the job of the fact investigator to determine whether this statement clearly indicates that he knows that he should use a safety device. The plaintiff may use the decision to argue that the analysis on whether the plaintiff was the proximate cause of his injury has been changed. In fact, as dissidents have said, “owners and contractors must clearly prohibit all imaginable forms of hoaxes-this discovery sets up a new and impossible barrier that is not supported in our case law. "

Disclaimer: Due to the general nature of this update, the information provided here may not be applicable in all situations, and action should not be taken without specific legal advice based on specific circumstances.

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