In a recently published opinion, the Appellate Division, Second Department, upheld a Suffolk County Supreme Court decision granting summary judgment in favor of an injured bridge worker who slipped backwards off a scaffold while sandblasting the side of a bridge and fell 20 feet. The court held that the project manager’s affidavit stating that safety harnesses were provided to employees working on elevated surfaces; that anchor points were available to tie off the harnesses; that the scaffolding was equipped with safety railings; that ladders and a man lift were available on site; and that the foreman told the bridge worker that a safety harness was available was insufficient to create a triable issue of fact as to whether the worker’s own actions were the proximate cause of his injuries. Lopes v. Cnty. of Suffolk, No. 2022-08895, 2025 WL 850177, at *2 (N.Y. App. Div. Mar. 19, 2025). The Appellate Division affirmed the trial court’s determination that the bridge worker met his burden and demonstrated a violation of Labor Law § 240(1).
Labor Law § 240, also known as New York’s “Scaffold Law,” imposes strict liability upon owners, contractors, and their agents for injuries suffered by workers at construction sites. N.Y. Lab. Law, Ch. 31, Art. 10, § 240. The Scaffold Law “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993). Section 240(1) requires owners, contractors, and their agents to provide appropriate safety devices for the protection of works engaging in labor that involves elevation-related risks. Amaro v. New York City Sch. Constr. Auth., 216 N.Y.S.3d 194, 196 (2024). Section 240(2) further requires the installation of safety rails for scaffolding or staging when work is performed more than twenty feet from the ground or floor. Labor Law § 240(2). In order to impose strict liability, the injured worker need only demonstrate that there was a violation of the statute, and that such violation was the proximate cause of his or her injuries. Amaro, 216 N.Y.S.3d at 196.
For the owner, contractor, and their agents, defending an alleged violation of Labor Law § 240 is much more difficult. The injured worker’s own comparative negligence is not a defense against strict liability if the worker establishes a violation of Labor Law § 240(1) and that the violation was a proximate cause of the injury. Instead, once the worker makes this showing, the burden switches to the defendant, who must show there was no violation of the statute and the injured worker is the sole proximate cause of his or her injuries. Amaro, 216 N.Y.S.3d at 196. Under this analysis, sometimes called the “recalcitrant worker defense,” courts consider the following to rebut the imposition of strict liability: (1) if there were adequate safety devices available; (2) if the worker knew both that the safety devices were available and that he or she was expected to use them; (3) if the worker chose not to use the safety devices and had no good reason for choosing not to do so; and (4) if the worker would not have been injured had he or she not made that choice. Id.; see also Gordon v. E. Ry. Supply, Inc., 82 N.Y.2d 555, 562-63 (1993) (“The [recalcitrant worker] defense requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer”).
Turning back to the Lopes decision, in defense of the bridge worker’s allegation of a Labor Law § 240(1) violation, the general contractor offered an affidavit signed by the project manager in an effort to establish a recalcitrant worker defense. The affidavit stated that safety harnesses were provided to employees working on elevated work surfaces; that anchor points were available to tie off the harnesses; that the scaffolding was equipped with safety railings; and that ladders and a man lift were also available on the site. The affidavit further stated that the foreman (not the project manager) told the bridge worker that safety harnesses were available when he arrived at the job site.
The court found the project manager’s affidavit insufficient to support a recalcitrant worker defense on whether the injured worker knew that he was supposed to use safety equipment, a man lift, or a scaffold different from the one he actually used, and whether the injured worker deliberately chose not to do so, for no good reason. Moreover, the affidavit was found to be deficient because it was vague concerning what instructions the injured worker received and because the affiant lacked personal knowledge on this point. In light of the above, the Appellate Division held that the Suffolk County Supreme Court properly granted the bridge worker’s motion for summary judgment on the issue of liability under Labor Law § 240(1). Lopes, 2025 WL 850177, at *2 (N.Y. App. Div. Mar. 19, 2025).
In light of Lopes, owners, contractors and their agents should gather as much information as possible from individuals who are present at the job site and who have personal knowledge of the availability of safety equipment and who have personal knowledge of any conversations with the injured worker about the expectation to use the available safety equipment. Additional relevant information may include documentation from the construction site, such as daily inspection logs and acknowledgment forms signed by the workers using the scaffolding affirming that they have been advised of the presence and recommended use of safety equipment and that an appropriate safety railing has been installed. This information could be critical to determine the applicability of the recalcitrant worker defense.
