To be Argued by:
LAURENCE D. BEHR, ESQ.
Time Requested for Argument:
STATE OF NEW YORK
Court of Appeals
MARC A. NICOMETI,
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
THOMAS WHITNEY and SCOTT PFOHL,
Erie County Index No. 2008-3306.
WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING
AND REMODELING CO., INC.,
Erie County Index No.: 2008-3306-TP3.
Appellate Division Docket No. CA 12-01962.
BRIEF FOR DEFENDANT-RESPONDENT-APPELLANT
THE VINEYARDS OF FREDONIA, LLC
BARTH SULLIVAN BEHR
Attorneys for Defendant-Respondent-
Appellant The Vineyards
of Fredonia, LLC
43 Court Street, Suite 600
Buffalo, New York 14202-3101
Telephone: (716) 856-1300
Facsimile: (716) 856-1494
LAURENCE D. BEHR, ESQ.
Date of Completion: May 28, 2014
BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................... ii
DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) ..................1
PRELIMINARY STATEMENT .....................................................................3
STATEMENT OF FACTS ..............................................................................4
This Court Should Reverse the Holding That Labor Law § 240(1)
Applies to This Accident, Which Resulted From a Slip on Ice
While Wearing Stilts ........................................................................................5
The Lower Court Correctly Held There Is a Factual Issue as to
Whether the Plaintiff’s Own Conduct Was the Sole Proximate
Cause of His Accident, Applying Blake v. Neighborhood Housing
Service, 1 N.Y.3d 280 (2003) ....................................................................... 14
A. Finding that Labor Law § 240(1) applies does not preclude a finding
that the plaintiff was the sole proximate cause of his accident .......... 14
B. Issuance of a warning to avoid an unsafe practice is not
essential to the “sole proximate cause” defense; however,
such a warning may constitute evidence, at trial, that the
plaintiff’s own conduct was sufficient to sever the nexus
between any violation, and the accident ............................................. 17
CONCLUSION ............................................................................................. 22
TABLE OF AUTHORITIES
Andrews v. Ryan Homes,
27 A.D.3d 1197 (4th Dept 2006) ................................................... 16,18
Blake v. Neighborhood Housing Service,
1 N.Y.3d 280 (2003) ................................................................. 14,19,22
Garcia v. Mt. Airy Estates, Inc.,
2012 NY Sip Op 50615(U) (S. Ct. Richmond Co. 2012) ........ 10,11,13
Gatto v. Clifton Park Sen. Lvg, LLC,
90 A.D.3d 1387 (3d Dept 2011) ............................................................9
Gonzalez v. Majestic Fine Custom Home,
2012 NY Slip Op 31466U (Sup. Ct. Queens Co. 2012) ............... 11-13
Klein v. City of New York,
89 N.Y.2d 833 (1996) ............................................................................8
Matos v. Garden State Brick Face,
272 A.D.2d 70 (1st Dept 2000) ..................................................... 12,13
McNabb v. Oot Bros.,
64 A.D.3d 1237 (4th Dept 2009) ........................................ 3,4,10,12,13
Melber v. 6333 Main Street, Inc.,
91 N.Y.2d 759 (1998) ......................................................... 3,5-10,12,13
Quattrocchi v. FJ Sciame Construction Corp.,
11 N.Y.3d 757 (2008) ......................................................................... 17
Robinson v. East Med. Ctr.,
6 N.Y.3d 550 (2006) ........................................................................... 15
Rocovich v. Consolidated Edison Co.,
78 N.Y.2d 509 (1991) ............................................................................7
Ross v. Curtis-Palmer Hydro-Elec.,
81 N.Y.2d 494 (1993) ............................................................................7
Russell v. Widewaters South Bay Road,
289 A.D.2d 1025 (4th Dept 2001) ...................................... 3,9,10,12,13
Thome v. Benchmark Main Trans. Assoc.,
86 A.D.3d 938 (4th Dept 2011) ..................................................... 20,21
Wonderling v. CSX Transportation, Inc.,
34 A.D.3d 1244 (4th Dept 2006) ........................................................ 18
C.P.L.R. § 5602(b)(1) ......................................................................................3
N.Y. Labor Law § 240 ............................................................ 4,5,7,9,11,12,14
N.Y. Labor Law § 240(1) .................................................. 2,3,5,7-10,13-16,22
Disclosure Statement Pursuant to Rule 500.1(f)
The respondent-appellant Vineyards of Fredonia LLC has no parent,
subsidiary or affiliated entities.
1. Was the plaintiff's slip-and-fall on ice the result of an elevation-related
risk within the ambit of N.Y. Labor Law § 240(1), simply because he was walking
on stilts at the time?
The court below answered “yes.”
2. If the answer to the preceding question is “yes,” were issues of fact
presented as to whether the plaintiff is not entitled to the protection of such statute,
because he was the sole proximate cause of his injury, by reason of his own
decision to walk on the ice spot, despite his admittedly having previously
complained about it, and also allegedly having been told by his supervisor to avoid
The court below answered “yes.”
This court has jurisdiction to hear this appeal, and to determine the
Questions Presented, pursuant to C.P.L.R. § 5602(b)(1), the court below having
granted leave to appeal regarding such questions by order entered June 14, 2013
This brief is submitted on behalf of the Respondent-Appellant Vineyards of
Fredonia LLC (“Vineyards”), whose position on every issue presented is identical
to that of the respondent-appellant Winter-Pfohl, Inc. (“WPI”), which served as
Vineyards’ general contractor for the construction project in question. Vineyards,
accordingly, hereby adopts every argument and each authority advanced by WPI,
to the same extent as if fully stated herein.
The primary issue on these appeals is whether the plaintiff, who slipped on
ice and fell, while he was on stilts installing ceiling insulation, possesses a claim
under NY Labor Law § 240(1). The lower court clearly erred in granting summary
judgment to the plaintiff, and denying summary judgment to the appellants on this
issue, because the controlling precedent, Melber v. 6333 Main Street, Inc., 91
N.Y.2d 759 (1998), and also the lower court’s own prior decisions Russell v.
Widewaters South Bay Road, 289 A.D.2d 1025 (4th Dept 2001), and McNabb v.
Oot Bros., 64 A.D.3d 1237 (4th Dept 2009), all clearly indicate that a fall caused
by a floor-level hazard encountered by a worker using stilts is not “elevation
related,” and therefore
“does not fall within the purview of [NY Labor Law §
240(1)] (see Melber v 6333 Main St., 91 NY2d 759, 763-
764 ; Russell v Widewaters S. Bay Rd. Assoc., 289
AD2d 1025 ).
McNabb, supra, 64 A.D.3d at 1239. This court should, therefore, reverse the
decision below and grant summary judgment dismissing the section 240 claim.
Point I, infra.
Alternatively, this court should at least deny the relief sought by the
plaintiff's appeal, which requests reversal of the lower court’s correct holding that
an issue of fact exists as to whether the plaintiff’s own conduct in walking on the
ice, ignoring an instruction from his supervisor to avoid the ice, which he admitted
that he had complained about even before being so instructed, constitutes the sole
proximate cause of his accident. Point II, infra.
STATEMENT OF FACTS
Defendant-appellant Vineyards of Fredonia LLC hereby incorporates by
reference, to the same extent as if fully restated herein, the Statement of the Case
set forth at pages 5-12 of the brief of defendant-appellant Winter-Pfohl, Inc., dated
May 20, 2014.
This Court Should Reverse the Holding That
Labor Law § 240(1) Applies to This Accident,
Which Resulted From a Slip on Ice While Wearing
The lower court incorrectly held that the plaintiff's claim, that he slipped on
ice and fell while he was using stilts to install insulation in a ceiling, comes within
the ambit of N.Y. Labor Law § 240(1), stating:
Supreme Court properly concluded that plaintiff’s
fall was the result of an elevation-related risk for which
Labor Law § 240 (1) provides protection. Plaintiff alleged
that he fell when his stilts slipped on ice while he was
installing insulation at an elevated level, i.e., the ceiling. . .
. Inasmuch as the stilts “failed while plaintiff was
installing the [insulation on the ceiling]—work requiring
the statute’s special protections” (Melber v 6333 Main St.,
91 NY2d 759, 763-764), the court properly concluded that
the statute applies to plaintiff’s section 240 (1) claim.
Consequently, the court properly denied the cross motion.
107 A.D.3d at 1538 (emphasis added).
Vineyards respectfully submits that the lower court, by focusing only on the
snippet from Melber quoted in its decision, misconstrued the holding of Melber,
which however, with one exception, has been correctly understood and applied in
other decisions of both that court (the Fourth Department) and of Supreme Court,
as precluding a Section 240 claim where a worker on stilts trips or slips, due to a
hazardous condition located on the floor.
The passage in Melber from which the lower court quoted, in its sentence
beginning “Inasmuch as the stilts ‘failed while plaintiff was installing . . . ,’” reads
The stilts, moreover, performed the function Labor Law §
240(1) required of them: allowing plaintiff to safely
complete his work at a height. Had they failed while
plaintiff was installing the metal studs in the top of the
drywall — work requiring the statute's special protections
— a different case would be presented. But here, as was
the case in Ross, injury resulted from a separate hazard —
electrical conduit protruding from the floor. Even if the
stilts failed to avoid that pitfall, "plaintiff's injuries
allegedly flowed from a deficiency in the device that was
‘wholly unrelated to the hazard which brought about its
need in the first instance'" and did not interfere with or
increase the danger of injury in the performance of his
elevation-related task (Ross v Curtis-Palmer Hydro-Elec,
81 N.Y.2d, at 501, supra, quoting Ross v Curtis-Palmer
Hydro-Elec., 180 A.D.2d 385, 394 [Mercure, J., dissenting
in part]). Thus, plaintiff must look elsewhere for his
.91 N.Y..2d at 763-764 (emphasis added).
As shown by the foregoing, full-context quotation, this court, following the
sentence, “Had they failed while plaintiff was installing the metal studs in the top
of the drywall — work requiring the statute's special protections — a different case
would be presented,” made it clear that the risk that caused the plaintiff's injury, a
floor-level defect, was a “separate hazard,” i.e., was not elevation-related, and
therefore was not one within the category of risks contemplated by Labor Law
Accordingly, this court continued on to state, in Melber:
Even if the stilts failed to avoid that pitfall, "plaintiff's
injuries allegedly flowed from a deficiency in the device
that was ‘wholly unrelated to the hazard [i.e., working at
an elevation] which brought about its need in the first
instance'" and did not interfere with or increase the
danger of injury in the performance of his elevation-
Id. at 764 (bracketed material and emphasis added; citations omitted).
Further showing that Melber cannot be limited and confined in the manner
desired by the plaintiff, with which the court below agreed (i.e., that there was no
section 240 violation in Melber, only because the plaintiff was not actively
installing studs), Melber analogized the facts in that case to both Ross v Curtis-
Palmer Hydro-Elec, 81 N.Y.2d 494 (1993), and Rocovich v Consolidated Edison
Co., 78 N.Y. 2d 509 (1991), both of which applied the principle that this court
found to require its holding in Melber:
Consistent with Rocovich and Ross, we have confined
liability under the statute to failure to protect against elevation-
related risks (see, e.g., Misseritti v Mark IV Constr. Co., 86
N.Y.2d 487, rearg denied 87 N.Y.2d 969; Rodriguez v Tietz Ctr.
for Nursing Care, 84 N.Y.2d 841; Smith v New York State Elec.
& Gas Corp., 82 N.Y.2d 781). That determination requires
To be sure, conduit protruding from an unfinished floor —
like a trough filled with hot oil — is a hazard in the workplace
against which employees should be protected. However, neither
the trough nor the conduit is a risk that can be avoided by proper
placement or utilization of one of the devices listed in Labor
Law § 240 (1). The protective equipment envisioned by the
statute is simply not designed to avert the hazard plaintiff
encountered here. Thus, we agree with the Appellate Division
dissent that the "proper `erection,' `construction,' `placement' or
`operation' of one or more devices of the sort listed in section
240 (1)" would not have prevented plaintiff's injuries (Rocovich v
Consolidated Edison Co., 78 N.Y.2d 509, 514, supra).
Id. at 763 (emphasis added).
Stilts simply are not designed to eliminate, nor are they even capable of
protecting against, the hazards of tripping over conduit, and of slipping on ice.
Stilts are not even “one of the devices listed in Labor Law § 240 (1),” and even if
they were, it just is not possible for an owner or general contractor to ensure that
the “placement” or the “operation” of stilts, by the worker wearing them, is proper
relative to such hazards. This plain and undeniable fact distinguishes this case, and
Melber itself, from cases such as Klein v City of New York, 89 N.Y.2d 833 (1996),
in which a ladder was placed on a slippery floor, and from the similar ladder-
placement cases on which the plaintiff relies (Brief for Appellant-Respondent 13-
In sum, nowhere does Melber state that the plaintiff would have been
protected by Labor Law § 240(1) if he had tripped on conduit while actually
installing metal studs at the top of the drywall, as the lower court mistakenly
concluded. Such an interpretation is plainly incompatible with Melber’s clear
holding, fully quoted above, that his “injuries allegedly flowed from a deficiency
in the device that was ‘wholly unrelated to the hazard [i.e., working at an
elevation] which brought about its need in the first instance.'"
Therefore, it is necessary to conclude that, by the second sentence in this
passage, “Had they failed while plaintiff was installing the metal studs,” this court
meant, “had the stilts themselves proven defective,” and, for that reason, “failed” to
protect the plaintiff while performing “work requiring the statute's special
protections,” a section 240(1) claim would be presented. Compare Gatto v. Clifton
Park Sen. Lvg, LLC, 90 A.D.3d 1387, (3d Dept 2011)(one of the plaintiff’s stilts
broke and collapsed, supporting his § 240(1) claim).
This is how Melber had been applied by the court below, prior to this
decision: as precluding a section 240 claim where a worker on stilts slips or trips
on a condition located on the floor, which is not an elevation-related hazard, and so
is not one that requires “the statute’s special protections” – regardless of whether
the plaintiff was actually performing the elevated work, or only walking from one
point to another between actually working at a height.
Melber was properly understood and correctly applied by the Fourth
Department in both Russell v. Widewaters South Bay Road, 289 A.D.2d 1025 [4th
Dept 2001], and McNabb v. Oot Bros., 64 A.D.3d 1237 [4th Dept 2009], cases
which are indistinguishable from the instant case even though in each the stilts had
tripped over obstacles on the floor, rather than slipped on ice (or another
substance) on the floor. The Russell decision reads in full:
Supreme Court properly granted that part of third-
party defendant's cross motion seeking summary judgment
dismissing the Labor Law § 240 (1) claim. Plaintiff Dean
Russell, a subcontractor, tripped over an electrical cord
while working on stilts and, in doing so, "did not encounter
a hazard contemplated by the statute" (Melber v. 6333
Main St., 91 N.Y.2d 759, 761). [(Emphasis added)].
Similarly McNabb, in which “[p]laintiff was working on stilts when he
tripped over an electrical cord, causing him to fall and sustain injuries,” 64 A.D.3d
at 1237, held:
Contrary to the contention of plaintiff on his cross
appeal, the court properly dismissed the Labor Law § 240
(1) claim against all defendants because the accident does
not fall within the purview of that statute (see Melber v
6333 Main St., 91 NY2d 759, 763-764 ; Russell v
Widewaters S. Bay Rd. Assoc., 289 AD2d 1025 ).
Id. at 1239.
The same understanding of Melber was also relied upon to dismiss Labor
Law § 240(1) claims in two recent Supreme Court decisions, Garcia v. Mt. Airy
Estates, Inc., 2012 NY Slip Op 50615(U)(S. Ct. Richmond Co. 2012), and
Gonzalez v. Majestic Fine Custom Home, 2012 NY Slip Op 31466U (Sup. Ct.
Queens Co. 2012).
The plaintiff in Garcia “wore stilts as he applied spackle to the ceiling of a
garage,” and so was actually performing elevation-related work, but his section
240 claim was dismissed because his stilts did not fail; rather he tripped on debris:
The Court of Appeals in 2009 held, the single decisive
question in determining whether Labor Law § 240(1) is
applicable is whether the worker's injuries were the direct
consequence of a failure to provide adequate protection
against a risk arising from a physically significant
elevation differential" (Runner v New York Stock Exch.
Inc., 13 NY3d 599, 603 . . . . Here, plaintiff states that the
cause of his fall was "debris . . . pieces of sheetrock . . .
trimmings from wood and other things . . ." . . . , and that
the stilts themselves did not malfunction. Thus, no issue
has been raised suggesting that the stilts failed to perform
the function required of them by statute or that they failed
to allow plaintiff to safely perform his work at the required
elevation . . . . In fact, there is no claim that plaintiff's
injury resulted from any deficiency in the stilts rather than
the debris which had been left on the floor. As a result it is
undisputed that the hazard which caused the accident was
"wholly unrelated" to the hazards contemplated by Labor
Law § 240 (1). Accordingly, defendants' motion to dismiss
plaintiff's claim under Labor Law § 240(1) must be
granted, and the plaintiff's motion for summary judgment
on that issue is denied (see Melber v 6333 Main Street, 91
NY2d 759, Ross v Curtis-Palmer Hydro-Electric.Co., 81
Slip Opinion at 2, 3 (emphasis added).
Likewise in Gonzalez the plaintiff was actually working on stilts, spackling
drywall in a kitchen, when “the bottom of his right stilt became entangled in a
yellow cable on the kitchen floor, he lost his balance, and he fell forward.” He
admitted that the stilts were in proper working order properly applied to his legs,
and, accordingly, Melber was seen as precluding his § 240 claim:
In Melber v. 6333 Main Street, Inc. (91 NY2d 759), the
Court of Appeals held that a carpenter who was injured
when he walked down a corridor wearing 42-inch stilts that
he had been using to install metal studs in drywall and who
tripped over an electrical conduit protruding from an
unfinished floor had no cause of action based on Labor
Law § 240. The Court of Appeals reasoned that the
carpenter's injury resulted from the conduit on the floor,
not from a failure of the stilts, and that therefore the injury
did not result from an elevation-related risk. The
"plaintiff's accident fell outside the scope of Labor Law §
240(1)***." (Melber v. 6333 Main Street, Inc.,
supra, 762.) Plaintiff Gonzalez failed to distinguish
the Melber case, which is dispositive. Draghi is entitled to
the dismissal of the cause of action based on Labor Law
Slip Opinion at 2, 3 (emphasis added).
The only post-Melber decision that does not understand Melber, as the lower
court did in Russell and McNabb, and as Supreme Court did in Gonzalez and
Garcia, is the First Department’s Matos v. Garden State Brick Face, 272 A.D.2d
70 [1st Dept 2000], which although not stating the actual cause of the plaintiff’s
fall from stilts, like the lower court here, mistakenly read Melber as depending on
the fact that the plaintiff was walking to retrieve a tool, rather than performing
work at a height:
Here, in distinction to Melber, where the plaintiff was
injured in a fall from stilts as he walked down a hallway to
retrieve a tool, plaintiff was injured in the course of
actually performing construction at an elevation.
272 A.D.2d at 70-71.
Melber was properly understood and applied by the Fourth Department in
both Russell and McNabb, and by the Supreme Court in Gonzalez and Garcia.
This court should reaffirm this correct understanding, and disapprove of the
incorrect view of Melber espoused by the Third Department in Matos, and by the
Accordingly, Vineyards respectfully submits that this court should reverse
the lower court and issue a decision dismissing the plaintiff's claim under Labor
Law § 240(1).
The Lower Court Correctly Held There Is a
Factual Issue as to Whether the Plaintiff's Own
Conduct Was the Sole Proximate Cause of His
Accident, Applying Blake v. Neighborhood
Housing Service, 1 N.Y.3d 280 (2003).
A. Finding That Labor Law § 240(1) applies does not preclude a finding
that the plaintiff was the sole proximate cause of his accident.
The plaintiff argues strenuously that neither his alleged disregard of an
instruction to avoid using the stilts on ice, nor his decision to use them on ice that
he admittedly was aware of and had complained about, could possibly sever the
causal nexus between the claimed section 240 violation, and his injury. The
plaintiff is wrong.
The lower court held that an elevation-related risk was involved; that stilts
were the device provided to work safely at an elevation; and that because the stilts,
supposedly “failed” (i.e., slipped on ice), “the statute applies” to his claim, stating,
“Consequently, the [IAS] court properly denied the cross motion [for summary
judgment dismissing the § 240 claim].” 107 A.D.3d at 1539. The lower court,
however, then correctly proceeded to hold that there is a fact issue presented as to
whether the plaintiff was the sole proximate cause of his accident because he used
his stilts to walk on ice, which, instruction or no instruction, obviously is not a
proper, or safe, use of stilts:
Although plaintiff met his initial burden on the motion
(see generally Alvarez v Prospect Hosp., 68 NY2d 320,
324 ), defendants raised a triable issue of fact by
introducing evidence that he was directed not to work in
the area where the ice was located. Thus, "'[u]nlike those
situations in which a safety device fails for no apparent
reason, thereby raising the presumption that the device
did not provide proper protection within the meaning of
Labor Law § 240 (1), here there is a question of fact
concerning] whether the injured plaintiffs fall [resulted
from] his own misuse of the safety device and whether
such conduct was the sole proximate cause of his
injuries'" (Thome v Benchmark Main Tr. Assoc., LLC, 86
AD3d 938, 940 ). We therefore modify the order
107 A.D.3d at 1539 (emphasis added).
This court made it very clear in Robinson v. East Med. Ctr., 6 N.Y.3d 550
(2006), in which the plaintiff fell from the top of a 6-foot stepladder and
complained that a taller stepladder had not been given to him (the defendant
proving, however, that taller ladders were available, but the plaintiff never
attempted to get one), that the mere fact that section 240(1) applies to an activity,
and even a breach of the duty thereunder, does not preclude a finding that the
worker was the sole cause of his accident:
Where a "plaintiff's actions [are] the sole proximate
cause of his injuries, . . . liability under Labor Law § 240
(1) [does] not attach" (Weininger v. Hagedorn & Co., 91
NY2d 958, 960 ; see also Cahill v. Triborough
Bridge & Tunnel Auth., 4 NY3d 35 ; Blake v.
Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280
). Instead, the owner or contractor must breach the
statutory duty under section 240 (1) to provide a worker
with adequate safety devices, and this breach must
proximately cause the worker's injuries. These
prerequisites do not exist if adequate safety devices are
available at the job site, but the worker either does not
use or misuses them.
6 N.Y.3d at 554 (emphasis added).
Applying this two-step procedure, Andrews v. Ryan Homes, 27 A.D.3d 1197
(4th Dept 2006), first held that a prima facie section 240(1) violation had been
made out, but then went on to find questions of fact as to the so-called “sole
proximate cause” defense, based on an instruction or warning given to the plaintiff
by her supervisor:
We conclude that plaintiff met her initial burden on the
motion by establishing that Bobbitt placed a ladder near a
window that was to be cleaned and that plaintiff was
injured when she climbed the ladder and it slid out from
under her (see Alligood v. Hospitality W., LLC, 8 AD3d
1102 ; Boncore v. Temple Beth Zion, 299 AD2d 953
; Evans v. Anheuser-Busch, Inc., 277 AD2d 874
). In opposition to the motion, however, defendant
presented evidence establishing that, approximately 30
minutes before the accident, Bobbitt told plaintiff not to
climb the ladder as it was positioned and, indeed, that
Bobbitt had repeatedly told plaintiff not to use the ladder
without someone to steady it.
27 A.D.3d at 1198 (emphasis added).
Indeed, this court’s 2008 decision, Quattrocchi v. FJ Sciame Construction
Corp., 11 N.Y.3d 757 (2008), makes it clear that an instruction to avoid an unsafe
practice may present an jury question as to causation, even if a proper or adequate
safety device had not been provided:
We agree with the Appellate Division majority that triable
questions of fact preclude summary judgment on plaintiffs
Labor Law § 240 (1) claim, including whether the planks were
adequately secured in light of the purposes of the plank
assembly and whether plaintiff caused the accident by jostling
the doors after disregarding a warning not to enter the
doorway area. Accordingly, the Appellate Division properly
modified Supreme Court's order to the extent of denying partial
summary judgment on plaintiffs Labor Law § 240 (1) claim.
11 N.Y.3d at 759 (emphasis added). Likewise here, the majority of the court
below properly concluded that an issue of fact was presented as to whether the
plaintiff's own conduct was the sole proximate cause of his accident.
B. Issuance of a warning to avoid an unsafe practice is not
essential to the “sole proximate cause” defense; however,
such a warning may constitute evidence, at trial, that the
plaintiff's own conduct was sufficient to sever the nexus
between any violation, and the accident.
The plaintiff focuses on the lower court’s mention of the fact that the
plaintiff's supervisor testified that he warned the plaintiff to avoid the ice, and
invokes inapplicable case law regarding the “recalcitrant worker” defense,
arguing that such cases hold that an instruction to avoid an unsafe practice is not
the equivalent of providing a proper safety device.
The plaintiff's entire “recalcitrant worker” line of cases, rejecting arguments
that an instruction was given to avoid an unsafe practice, simply is not on point
here. Such an instruction, to be sure, also figures in some cases holding that an
issue of fact exists as to “sole proximate cause,” e.g., Andrews v Ryan Homes,
supra; see also Wonderling v. CSX Transporation, Inc., 34 A.D.3d 1244 [4th Dept
Although defendant submitted evidence that plaintiff fell
when his foot slipped on the wet slippery steel of the
scaffolding, that plaintiff was told not to disassemble the
scaffolding that day because of the wet conditions, and
that safety harnesses were available, defendant did not
thereby establish as a matter of law that the actions of
plaintiff were the sole proximate cause of his injuries (see
Hagins v State of New York, 81 NY2d 921, 922-923
; see also Whiting v Dave Hennig, Inc., 28 AD3d
1105 ). We thus conclude on the record before us
that there are issues of fact whether the actions of
plaintiff were the sole proximate cause of his injuries (see
Andrews v Ryan Homes, Inc., 27 AD3d 1197 ; cf.
Robinson v East Med. Ctr., L.P., 6 NY3d 550, 554-555
; Blake v Neighborhood Hous. Servs. of N.Y. City,
1 NY3d 280, 290-291 ). [See 11 Misc 3d 1061(A),
2006 NY Slip Op 50337(U) (2006).]
34 A.D.3d at 1235 (emphasis added). However, a warning or instruction is not
necessary to defendants’ “sole proximate cause” defense, in which the focus is on
the plaintiff’s culpability, and whether it was so far below ordinary care that it
alone should be deemed to have caused his accident. The claimed instruction by
plaintiff's supervisor merely underscores the plaintiff's own negligent misuse of the
stilts to traverse ice, of which he admitted he was aware, and had even complained
This case is, in fact, indistinguishable from Blake, in which there was
provided a proper safety device—an extension ladder—which, like the plaintiff's
stilts did not have any defect, but failed to protect him due solely to his own
negligence in using it:
At trial, plaintiff again conceded that he could not
identify a defect in the ladder, that it was stable and there
was no reason to have it steadied during use. He also
revealed that he was not sure if he had locked the
extension clips in place before ascending the rungs. At
the close of the case, the court asked the jury to indicate
on the verdict sheet whether NHS had "the authority to
direct, supervise and control Mr. Blake's work" at the
residence. The jury answered yes. In response to the
second inquiry ("Was the ladder used by plaintiff Rupert
Blake so constructed, operated as to give proper
protection to plaintiff?"), the jury again said yes, leading
to the inescapable conclusion that the accident happened
not because the ladder malfunctioned or was defective or
improperly placed, but solely because of plaintiff's own
negligence in the way he used it.
1 N.Y.3d at 284 (emphasis added).
Here, had the plaintiff, when he applied the stilts to his legs, failed to lock
them at the desired height, or failed to properly secure them to his legs, practically
an identical situation to Blake, where the plaintiff failed to lock the ladder’s
extension clips, would be presented; however, it makes for no distinction that the
plaintiff's negligence in using the stilts occurred after and not while he applied
The dissenters in the lower court base their contrary opinion on a false
In our view, “stilts on ice” is the wrong device from
which to work at an elevation, and we thus conclude that
plaintiff was not furnished with a proper safety device as
a matter of law[.]
107 A.D.3d at 1540 (emphasis added). Vineyards submits that the plaintiff was not
furnished stilts to work on ice; rather, they were given him to install ceiling
insulation, with no specification as to the floor’s composition or condition. The ice
was mere happenstance, a condition that the plaintiff knew of and could have
avoided, had he wished to avoid it.
The dissenters below attempted unconvincingly to distinguish the lower
court’s own precedent, Thome v. Benchmark Main Trans. Assoc., 86 A.D.3d 938
(4th Dept 2011), which held there to be a factual issue regarding “sole proximate
cause” where a worker had driven a scissors lift into a hole. Thome held:
We agree, however, with the further contention of
defendants that they raised a triable issue of fact whether
plaintiff's actions were the sole proximate cause of his
injuries. In opposition to the motion, defendants
submitted evidence that plaintiff was aware that holes
had been cut into the concrete floor of the building in
which he was working and that, on the morning of his
accident, plaintiff had been specifically directed not to
operate the scissor lift in the area where the holes had
been cut. Further, defendants submitted evidence that
plaintiff drove the raised lift into that area while looking
at the ceiling rather than where the lift was going.
Consequently, "[u]nlike those situations in which a safety
device fails for no apparent reason, thereby raising the
presumption that the device did not provide proper
protection within the meaning of Labor Law § 240 (1),
here there is a question of fact [concerning] whether the
injured plaintiff's fall [resulted from] his own misuse of
the safety device and whether such conduct was the sole
proximate cause of his injuries" (Bahrman v Holtsville
Fire Dist., 270 AD2d 438, 439 ).
86 A.D.3d at 939-940 (emphasis added).
The dissent below, based on its review of Thome’s appeal record, argued
that “there was at least some demarcation of the hazard in that case.” However, the
dissent failed to indicate on what grounds they base this distinction; no precedent is
cited, nor is any known, for the proposition that failing to obey an instruction to
avoid a known hazard will support a finding of “sole proximate cause” only if the
hazard is clearly marked.
Furthermore, it is undisputed that the ice was apparent and visible enough to
the plaintiff that he had himself noticed it, and complained about it, beforehand, so
the dissent’s effort to distinguish Thome clearly fails.
The dissenters’ other argument that “the stilts were not ‘so . . . placed . . . as
to provide proper protection to plaintiff,’” 107 A.D.3d at 1540 (emphasis added),
simply ignores the fact, that only the plaintiff was responsible for placing his stilts
properly, just as the plaintiff in Blake was solely responsible for operating his
extension ladder properly; “operated” being another of the three actions that
section 240(1)’s last phrase requires owners and contractors to do properly (“and
other devices which shall be so constructed, placed and operated as to give proper
protection to a person so employed”).
If only the worker can place or operate the safety device in question, the
owner or general can only be faulted for failing to provide it, or for providing a
defective or inadequate device. Here, the proper safety device—a pair of stilts—
was provided; it was the plaintiff who failed to place and operate it properly, or at
least, a jury could reasonably so conclude.
For the foregoing reasons, the respondent-appellant Vineyards of Fredonia,
LLC, respectfully requests that this court issue an order reversing the order
appealed from and dismissing the plaintiff's Labor Law § 240(1) claim, and
affirming the lower court’s order to the extent that it held there to be a question of
fact regarding whether the plaintiff's conduct was the “sole proximate cause” of his
May 28, 2014
Laurence D. Behr, Esq.