Construction Accident Litigation, Part 1: ‘Biaca-Neto’ and Sole Proximate Cause

In this edition of his Construction Accident Litigation column, Brian Shoot focuses upon a single question: whether the plaintiff-worker’s conduct constitutes the sole proximate cause of the subject accident as a matter of law, or alternatively may be deemed by a jury to be the sole proximate cause of the subject accident.

Editor’s Note: This is the first in a two-part series.

Whether, In An Action Governed By Labor Law § 240, The Worker’s Conduct Can Be Deemed The “Sole Proximate Cause” Of The Subject Accident Notwithstanding That He Or She Was Allowed To Work Unsafely

I return to a recurrent subject of this column: the “sole proximate cause” defense in actions in which recovery is sought under Labor Law § 240. Today’s column—which will appear in two installments due to its length—focuses upon a single question: whether the plaintiff-worker’s conduct constitutes the sole proximate cause of the subject accident as a matter of law, or alternatively may be deemed by a jury to be the sole proximate cause of the subject accident, in a case in which, a) the worker indeed knew there was a safer means of working at the subject elevation, and also that he or she was expected to use that safer means of elevation or had been told to do so, b) the subject accident would not have occurred but for the worker’s choice of the unsafe mode of elevation, and, c) it nonetheless remains that the persons in control of the site allowed the worker to work unsafely on this and perhaps prior occasions as well.

Although the question is hypothetical and the answer is open to dispute, the issue closely resembles that which divided the Court of Appeals in Biaca-Neto v. Boston Road II Housing Development Fund, 34 NY3d 1166 [2020], where, however, many critical facts were contested and the lesson to be learned is in consequence debatable.

Apart from review of the ruling in Biaca-Neto, the analysis will necessarily entail consideration of the “sole proximate cause” defense and of the distinction between conduct which wholly bars recovery under that doctrine and conduct which amounts to “comparative negligence.” The analysis will also require consideration of two factors which continue to render that distinction problematic in certain cases: 1) the still confounding Klein/Blake conundrum (NYLJ, 2/4/21, “The Still Unresolved Klein/Blake Mystery”), and, 2) the often underlying question of who, the workers themselves or the entities in control of the work site, are “ultimately responsible” for work site safety.

Along the way, we shall touch upon the historical distinction between the manner and extent to which the plaintiff’s own negligence can limit recovery in “ordinary” personal injury actions, in contrast to cases in which recovery is premised upon Section 240 of the Labor Law. The potential anomaly is that, depending on how one construes the contours of the “sole proximate cause” defense, it is possible for Labor Law § 240 plaintiffs to be wholly barred from recovery in circumstances in which “ordinary” plaintiffs would not be. Ironically, that result would indirectly arise from the legislature’s efforts to protect Labor Law § 240 workers.

The article will conclude with a brief survey of some recent Appellate Division rulings that did not squarely address the hypothetical which is the focus of the article but did involve arguably analogous fact patterns.

The ‘All Or Nothing’ ‘Sole Proximate Cause’ Defense

As anyone remotely familiar with the subject already knows, mere “comparative negligence” is not a defense, and will not reduce the worker’s recovery, where the subject injury arises from a failure to provide “proper protection” as to an elevation risk within the ambit of Labor Law § 240. Sotelo v. TRM Contracting, LP, 212 AD3d 488, 488-489 [1st Dept 2023]; Yang v. City of New York, 207 AD3d 791, 794 [2d Dept 2022]. On the other hand, recovery under the statute will be barred if the worker’s own negligence was the “sole proximate cause” of the subject injury. Barreto v Metro. Transportation Authority, 25 NY3d 426, 433 [2015].

The result is an “all or nothing” rule; the Labor Law § 240 plaintiff will either recover either all of his or her damages or none of his or her damages. There can be no other outcome.

It is, accordingly, hardly surprising that the worker’s conduct is so often claimed to have been the “sole proximate cause” of the subject accident in Labor Law § 240 actions. Just in the past 12 months, there have been literally 50 appellate decisions in which the plaintiff’s conduct was claimed to have been the sole proximate cause of the subject accident. As I write, there have been ten such cases just in calendar year 2023.

Of course, the ultimate problem in such cases, to which we soon return, is that of distinguishing conduct which was “mere comparative negligence” from that which was the “sole proximate cause” of the accident as a matter of law, or, a third possibility, from conduct that a jury could reasonably say was the “sole proximate cause” of the subject accident. However, before we get to the problem at hand, I need to first take a historical diversion into general negligence law, and to then identify and examine the two uncertainties that have caused and continue to cause much of the difficulty in distinguishing “mere comparative negligence” from conduct which may deemed the “sole proximate cause” of the subject accident.

The Pre-Comparative Era, And The Exception Made For Labor Law § 240

Once upon a time—more specifically, up until 1975—the general rule held that a personal injury plaintiff’s contributory negligence in causing his or her injury completely barred recovery. This was so even in the hypothetical case in which the trier of fact could reasonably assign 99% of the fault and 1% to the plaintiff, as could occur where, for example, an intoxicated defendant-driver ran a light and crashed into a plaintiff-pedestrian who was proceeding in a marked crosswalk with a green light … but who was inattentive and should have realized that the driver was going too fast to stop.

With the enactment of CPLR Article 14-A (L. 1975, ch. 69), the result in such a case was greatly altered. The parties’ respective negligence would be apportioned, and the plaintiff would receive 99% of his or her damages if the jury figured that the plaintiff was 1% at fault.

Apart from altering the outcome in cases in which plaintiff and defendant were both at fault to a greater or lesser extent, the shift from the “all or nothing” rule to the world of comparative negligence heightened the jury’s role in resolving such disputes. To be sure, there would still be instances in which one party was negligent and responsible as a matter of law, or, alternatively, was free of negligence and therefore not responsible as a matter of law. In theory, these were the cases in which the hypothetical “reasonable juror” could reasonably reach only one conclusion as to the matter in issue. However, in the great mass of cases in which reasonable people could disagree as to the outcome, whether because the predicate facts were in dispute or because one could reasonably contest whether the subject conduct was reasonable in the circumstances, resolution would be in the jury’s province.

But the rules in Labor Law § 240 actions differed from those in ordinary negligence cases both before and after the enactment of comparative negligence. Even prior to the enactment of comparative negligence in 1975, going at least back until 1948, the worker’s contributory negligence would neither bar nor reduce his or her recovery where the subject injury was caused in whole or part by a statutory breach.

Thus, in Koenig v. Patrick Construction, 298 NY 313 [1948], where the worker fell “some 16 or 17 feet” because the unsecured ladder from which he was working “slipped out,” the court reasoned that the legislature had imposed a “flat and unvarying” duty to “provide protection” to workers within the subject class, that “’the very purpose of the statute was to protect [such workers] from the consequences of their own negligence,’” and that “‘it would be strange, therefore, if the same negligence could defeat the operation of the statute’” (298 NY at 318).

So, prior to the advent of comparative negligence, while the “ordinary” plaintiff whose negligence had contributed to the subject accident would lose and collect none of his or her damages, the Labor Law § 240 plaintiff would recover 100% of his or her damages, whether negligent or not, if the subject accident was caused in whole or part by a failure to provide “proper protection” within the meaning of the statute.

After the enactment of comparative negligence, the ordinary plaintiff who negligently contributed to the accident’s occurrence would no longer be wholly barred from recovery but would have his or her recovery diminished to the extent of the individual’s comparative fault. In contrast, the Labor Law § 240 plaintiff would still recover 100% of his or her damages, whether negligent or not, if the subject accident was caused in whole or part by a failure to provide “proper protection” within the meaning of the statute. Bland v. Manocherian, 66 NY2d 452, 460-461 [1985]. Such a worker would obtain full recovery unless the worker’s conduct was the “sole proximate cause” of the accident, leading back to the issue raised at the outset of this column: how one distinguishes mere “comparative negligence” from conduct which was, or which could be found to be, the “sole proximate cause” of the subject accident.

Literal Versus Actual

Clearly, when the worker is provided with but flat-out refuses to use the safety device that would have prevented the accident—in the parlance of the case law, the worker was “recalcitrant”—recovery is barred. Cahill v. Triborough Bridge and Tunnel Authority, 4 NY3d 35, 39-40 [2004]. At one point, it appeared that such was the only circumstance in which the worker’s conduct would bar recovery (Hagins v. State, 81 NY2d 921, 922-923 [1993]), but the Court of Appeals subsequently ruled otherwise (Blake v. Neighborhood Housing Services, 1 NY3d280, 290 [2003]).

So, ignoring the easy cases in which the worker was on the one hand “recalcitrant” or on the other hand wholly blameless, when is the worker’s fault in causing the accident mere “comparative negligence” and when does it rise to the level of being the “sole proximate cause” of the subject accident? The answer is exceedingly simple if the words “sole proximate cause” are construed literally.

Literally, even if one assumes that the accident would not have occurred “but for” the plaintiff’s negligence—which might also be true of other factors that were comparatively unimportant or so far removed from the events as to not even be “proximate” causes of the subject accident the worker’s negligence was not the “sole” proximate cause if there was also some other factor, whether of greater or lesser importance, that was also a proximate cause without which the accident would not have occurred.

However, in actual practice, there are two sources of uncertainty which can sometimes render the distinction problematic. One, considered below, relates to a critical gap in the case law. The other, which will be addressed in the second part of this column, depends on the basic and critical question of whether, as the Court of Appeals has repeatedly said but has not always followed, it is indeed the parties at the top of the proverbial food chain, the parties in control of the site, who are “ultimately responsible” for worker safety.

The ‘Klein/Blake’ Conundrum

The hole in the case law is one I have discussed in prior columns, but it still remains unresolved. I refer to the shadow that exists by virtue of the difficulty in harmonizing the Court of Appeals’ decision in Klein v. City of New York, 89 NY2d 833 [1996] (and in two cases that preceded Klein) with the Court’s subsequent ruling in Blake v. Neighborhood Housing Services of New York City, 1 NY3d 280 [2003].

In Klein, 89 NY2d 833, decided in 1996, there was one and only one cause of the subject accident. The plaintiff placed what was ostensibly a perfectly fine ladder on “gunk,” with the consequence that the ladder slipped out from under him, causing him to fall. Labor Law § 240[1] literally requires the “contractors and owners and their agents” to see that the listed devices—one of which is “ladders”—are “so constructed, placed and operated as to give proper protection” As the unanimous Klein court saw it, that meant that it was the responsibility of the owner and general contractor to ensure that the ladder was placed correctly, not the worker’s responsibility. The court noted that “the Legislature’s intent to achieve the purpose of protecting workers by placing ‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.” Klein, 89 NY2d at 834–835, quoting Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 520 [1985].

Klein followed several Court of Appeals decisions of similar ilk. In one, even assuming that the subject ladder “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,” the court reasoned that “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 [owner and employer] to supply a safe ladder or other device to give ‘proper protection’ to workers in plaintiff’s position.” Stolt v. General Foods, 81 NY2d 918, 920 [1993]. In another, where claimant tried to walk along the top of an unfinished abutment wall and fell in the process since the wall lacked railings, even assuming “that claimant had repeatedly been told not to walk across the abutment” the State could not “rely on claimant’s own negligence in using an unsafe route to cross the road as a ‘supervening cause’ of his injuries, since the accident was plainly the direct result of the failure to supply guardrails or other appropriate safety devices.” Hagins, 81 NY2d at 922-923.

But the result was very different in Blake, 1 NY3d 280, decided in 2003. The plaintiff in Blake, who to the extent it matters was the contractor and owned the subject ladder, took an extension ladder that was in “proper working condition” and apparently failed to lock the extension clips in place, with the result that the ladder retracted and plaintiff fell. The Court of Appeals unanimously ruled in Blake 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” (1 NY3d at 290) The court reasoned that application of Labor Law § 240 “would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed,” and “if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.”

Blake was followed a few years later by Robinson v E. Medical Center, 6 NY3d 550 [2006]. There, the plaintiff’s use of a ladder he knew to be too short when taller and “adequate” ladders were “available for plaintiff’s use at the job site” was deemed the sole proximate cause of the accident.

The ruling in Blake was fairly extensive. The Blake court cited more than 30 prior Court of Appeals’ rulings, including some decided back in the 1800’s (long before the enactment of Labor Law § 240). Yet, the Blake court conspicuously failed to explain how, precisely, the case differed from Klein, wherein the plaintiff prevailed as a matter of law. Nor did the court make any effort to distinguish Klein in its ruling in Robinson.

Was it that the plaintiff in Klein was an ordinary construction worker and the plaintiff in Blake owned his own contracting company? Or was it that the Blake plaintiff’s failure to lock the clips of an extension ladder was for some reason different, and worse, than the Klein plaintiff’s conduct in placing the ladder on “gunk”? The Court of Appeals provided some support for the latter notion in Nicometi v. Vineyards of Fredonia, 25 NY3d 90, 101 [2015], wherein it described Klein as having rested on the defendant’s failure to ensure “proper placement” of the device.

Alternatively, was it that extension ladders are in some respect different than other kinds of ladders for the purposes of the statute? Or maybe the difference was that the accident in Klein was caused at least in part by an underlying condition (the “gunk”) that the plaintiff played no part in creating?

While some (or maybe all) of these suggested distinctions may seem a poor reason to award one plaintiff summary judgment and deny the other any recovery, all are factual distinctions which could at least in theory explain the divergence. But which, if any, was the true reason for the difference in result? The Blake court did not say.

Not knowing which distinction(s) were meaningful and which were not, it can, for obvious reasons, sometimes be difficult to say whether the facts of the case at hand are closer in those respects that most matter to Klein or closer to Blake.

To be continued …

Having reached the outer bounds of the allowable length (and, very possibly, the reader’s patience), the second (and last) part of this column will appear at a later date. I there consider: the issue as to who (worker or owners/contractors) should bear the ultimate responsibility for site safety and how that bears on the hypothetical posed at the outset of this article, the extent to which the Court of Appeals’ ruling in Biaca-Neto resolves the matter, and several recent Appellate Division decisions that addressed an analogous but arguably distinguishable issue raised at the outset of this column.

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McManus Coffinas & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers.

Reprinted with permission from the May 05, 2023 edition of the “New York Law Journal”© 202X ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.