Analysis: How the Sole Proximate Cause Defense Applies to The Scaffold Law

Posted by Noff Colabella on Thu, Nov 16, 2017 @ 08:15 AM

scaffold lawAlthough we often talk about cause and effect, the truth is that the average effect has multiple causes, not just one. A car accident, for example, might be the fault of one driver’s inattention and the other driver’s failure to signal, as well as the weather and road conditions. Similarly, a construction worker’s on-the-job injury can often be pinned on multiple factors. Nevertheless, in some case, the sole proximate cause defense – which argues that the injured worker is solely responsible for the injuries sustained – can be successful in a Scaffold Law case.

What are the relevant laws?

New York has strict labor codes regarding liability for injuries sustained by construction workers during a fall. When a construction worker suffers a gravity-related injury, the Scaffold Law, more formally Labor Law 240(1), imposes absolute liability on contractors or property owners.

The strictness of the law has led to controversy. The Scaffold Law has been criticized for raising construction costs, driving away jobs and actually decreasing safety, and Congressman John Faso has been trying to counter it with the Infrastructure Expansion Act.

What is the sole proximate cause defense?

Because the Scaffold Law imposes absolute liability, defending against it is difficult, and showing comparative negligence is not sufficient. However, the sole proximate cause defense may be used successfully if the defendant can show that the injured worker was entirely responsible for the injury.

In Blake v. Neighborhood Housing Services of New York (803 N.E. 2d 757 - NY, Court of Appeals 2003), the court ruled that “there can be no liability under section 240 (1) when there is no violation and the worker's actions (here, his negligence) are the "sole proximate cause" of the accident.”

There are two key ideas here.

First, there must be no violation. The contractor or property owner must not have violated its duty to provide a safe environment with all necessary safety equipment.

Second, the worker’s negligence must be the sole cause of the injury. Showing that the worker’s negligence contributed to the injury is not enough.

What are the possible challenges to the sole proximate cause defense?

If the sole proximate defense is used, the plaintiff’s attorney will likely try to create doubt. For example, even if safety equipment was provided, the attorney may argue that the worker did not know to use it.

In Gallagher v. New York Post (923 NE 2d 1120 – NY, Court of Appeals 2010), it was stated that “there is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them.”

Clearly, providing safety devices may not be sufficient. It is also imperative to provide explicit instruction on the use of the devices.

As always, BNC Insurance is your construction insurance partner and resource. Contact us to learn more.

Tags: Scaffold Law