Court of Appeals

TOPICS:Labor Law § 240(1), Standing orders, Sole proximate cause

BIACA-NETO V. BOSTON RD. II HOUS. DEV. FUND CORP. 34 N.Y.3d 1166 February 18, 2020

The plaintiff was injured when he attempted to scale a scaffold beam and enter into the jobsite through a window cutout, unbuckling his safety harness to do so. The general contractor had issued a standing order that workers were not permitted to access the jobsite through window cutouts. The defendants argued that they had no liability under Labor Law § 240(1) because adequate safety devices were available to enter the building; the plaintiff was expected to use them; he chose not to use them without good reason; and he was injured as a result. The Court of Appeals held a triable issue of fact existed as to whether the plaintiff unambiguously knew he was expected to use provided safety devices, particularly in light of the apparent accepted practice of entering the building through window cutouts from scaffolding. The court noted the plaintiff used the hoist to access this area of the building previously and for no good reason chose “convenience over safety.” While we can certainly understand why the court reached its conclusion, this case significantly undermines a valuable defense. It establishes the only way this defense may be viable is if facts show the defendants tried to prevent the occurrence with utmost specificity.

PRACTICE NOTE: A standing order is insufficient to establish that a plaintiff had knowledge of the order, absent further proof that the order was communicated to the plaintiff.