Can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct. The Fourth Department recently addressed this issue in Thomas v North Country Family Health Ctr., Inc.
NY Court of Appeals’ caselaw tells us that a worker is the sole proximate cause of an accident where “plaintiff had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]).
Some cases present straightforward facts, making a determination of sole proximate “easier” than other cases. For example, the Court of Appeals held in Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), that the plaintiff, who used an overturned bucket to access an elevator motor room, was the sole proximate cause of his accident. The Court stated that ladders were available at the job site but not in the immediate vicinity where the plaintiff and his coworker were working. The Court stated, “Rather than fetch a ladder, however, the workers climbed to the motor room on an overturned bucket . . . [and] the plaintiff exited the motor room by jumping to the roof.” Citing a cornerstone Section 240 (1) case, Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]), the Court noted that “since ladders were readily available, [the] plaintiff’s normal and logical response should have been to go get one.”
What happens when a coworker denies the plaintiff use of an available safety device and, rather than speak to the foreman, the plaintiff takes it upon himself or herself to perform his work without the safety device?
In Thomas, the plaintiff and his coworker were working as a team, hanging sheetrock at a height on a building the defendants owned and operated. On the morning of the accident, the plaintiff stood on the ground and cut pieces of sheetrock while his coworker used a provided scissor lift to raise the cut sheetrock from ground level. The coworker then accessed the elevated portions of a 20-foot wall where he would fasten the sheetrock in place.
The coworker had a different idea for the afternoon work. He asked the plaintiff to climb a ladder and hand him a piece of sheetrock, all for the sake of convenience. The coworker told the plaintiff using a ladder would be faster, likely because the coworker did not want to keep reposition the scissor lift. Based on his years of experience, the plaintiff knew that using the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. Rather than insisting that his coworker follow the proper method,or addressing the issue with his supervisor, the plaintiff attempted to use an A-frame ladder to carry with one hand an approximately 90-pound piece of sheetrock up the ladder. The ladder tipped over and the plaintiff was injured in the resulting fall.
Does the sole proximate cause defense apply?
The Majority concluded a triable issues of fact existed on whether the defendants violated Labor Law sec. 240 (1) or whether the plaintiff was the sole proximate cause of the accident. The Majority focused on whether the plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Noting that the accident concerned “unique circumstances,” the Majority concluded that, in light of the coworker’s alleged conduct, “the evidence is not conclusive about whether plaintiff chose to use the ladder over an ‘available’ scissor lift for ‘no good reason.’” The Majority reasoned that the “intransigence” of the coworker who refused the plaintiff’s request to reposition the scissor lift was a proximate cause of the accident. Thus, the Majority concluded that “when [the] plaintiff’s conduct is viewed along with the coworker’s conduct, it cannot be said as a matter of law that [the] plaintiff was the sole proximate cause of the accident."
Justice Peradotto disagreed, stating that the Majority “strain[ed] Labor Law sec. 240 (1) beyond what the legislature intended to accomplish and improperly penalizes owners and contractors for complying with the law.” Justice Peradotto cited the plaintiff’s deposition testimony; he was emphatic in his testimony that using a ladder for the work was an inappropriate method for performing the task. Justice Peradotto concluded that the “plaintiff cannot, as a matter of law, evade an adverse finding of sole proximate cause on summary judgment by attributing his conduct to the coworker.” Justice Peradotto stated that the plaintiff’s “‘normal and logical response’” to his coworker’s unsafe request was to ask the coworker again to reposition the scissor lift and wait for him to do. Perhaps a more effective response would have been for the plaintiff to raise the issue with his supervisor; Justice Peradotto mentions this option, too.
Justice Peradotto rejected the Majority’s proximate cause analysis stating, “The majority's reference to the coworker's conduct as a proximate cause of the accident is thus incorrect not only on the facts but also on the law inasmuch as the majority's sole proximate cause analysis improperly substitutes the supposed negligence of the nonparty coworker for a statutory violation by defendants.”
The case is notable for several reasons. First, decisions in which Justice Peradotto’s dissents have found their way to the Court of Appeals on several occasions. Second, the Majority decision adds a gloss to the sole proximate cause defense – i.e., can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct? The Majority answered in the affirmative, narrowing its holding by stating the matter concerned “unique circumstances”.
Because the Majority denied the defendants’ cross-motion in part and reinstated the Labor Law sec. 240 (1) claim, the order is non-final. Thus, at this point, the defendants’ only avenue to the Court of Appeals is to move at the Fourth Department to grant leave to appeal to the Court of Appeals. The Fourth Department, like the other three Departments, is careful to grant leave to appeal sparingly. For now, though, lawyers for injured workers can make a good-faith argument that the Thomas applies outside of the Fourth Department because the other three Departments have not ruled on this precise issue.
(40 years ago this week, the out-of-leftfield hit "Abracadabra" by The Steve Miller Band reached No. 1 on the Billboard Hot 100)
Photo by Theen Moy
Comments