In Stolt, the Court of Appeals noted that "an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a safety device.'"Summary of this case from Dumas v. Myrtle Ave. Bldrs., LLC
Argued February 11, 1993
Decided April 5, 1993
Appeal from the Supreme Court, Monroe County, Donald J. Wisner, J., Harold L. Galloway, J.
Chamberlain, D'Amanda, Oppenheimer Greenfield, Rochester (Thomas G. Collins of counsel), for appellant.
J. Raymond Brown, Rochester, for respondent.
The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.
Plaintiff was injured when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder, which was owned by the contractor C.P. Ward, Inc., had been broken about a week earlier, and plaintiff had been instructed not to climb it unless someone else was there to secure it for him. Nonetheless, plaintiff attempted to climb the ladder without assistance when his supervisor left the work area.
Plaintiff commenced the present action for damages against the plant owner, General Foods Corp., alleging a violation of Labor Law § 240 (1). General Foods thereafter impleaded C.P. Ward, Inc., plaintiff's employer, as third-party defendant.
Contrary to C.P. Ward's arguments on this appeal, the court below properly granted plaintiff's motion for partial summary judgment on the issue of defendant General Foods' liability. The mere allegation that plaintiff had disobeyed his supervisor's instructions when he climbed the broken ladder does not provide a basis for a defense against plaintiff's Labor Law § 240 (1) cause of action. It is well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law § 240 (1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices (e.g., Bland v Manocherian, 66 N.Y.2d 452). Further, it cannot be said that plaintiff's alleged disregard of his supervisor's order was a supervening cause of the accident, since plaintiff's injuries were the direct result of the failure by General Foods and C.P. Ward to supply a safe ladder or other device to give "proper protection" to workers in plaintiff's position (cf., Mack v Altmans Stage Light. Co., 98 A.D.2d 468).
Finally, the so-called "recalcitrant worker" defense cannot be invoked in these circumstances (see, Smith v Hooker Chems. Plastics Corp., 89 A.D.2d 361, appeal dismissed 58 N.Y.2d 824). That defense, which has been widely recognized by the lower courts in this State (e.g., Koumianos v State of New York, 141 A.D.2d 189; Morehouse v Daniels, 140 A.D.2d 974; Cannata v One Estate, 127 A.D.2d 811; Lickers v State of New York, 118 A.D.2d 331; Heath v Soloff Constr., 107 A.D.2d 507), requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer (see, Hagins v State of New York, 81 N.Y.2d 921 [decided herewith]). It has no application where, as here, no adequate safety devices were provided (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 525-526 [Simons, J., concurring]). We note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a "safety device."
Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.