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There Can Be Only One - Sole Proximate Cause: What is it, and can it help the defense?

The Appellate Division, Second Department, in Iannaccone v United Natural Foods, Inc., 2023 NY Slip Op 04372, in a decision published this month, reversed the lower court's grant of the defendants' motion on Labor Law Section 240(1) and the dismissal of the plaintiff's Section 240(1) cause of action.

The decision highlights the high burden and challenges of asserting the "sole proximate cause" defense.

If successfully argued, the defense is complete. Liability under Labor Law Section 240(1) requires evidence that the statute was violated and that said violation constituted a proximate cause of the plaintiff's injuries. Evidence of comparative fault on the part of the plaintiff is inadmissible under Section 240(1). In that sense, liability under the statute is "strict".

Crucially, if the plaintiff's own conduct was the sole proximate cause of his injuries, then there can be no liability under the statute. As shown above, liability requires a violation of the statute and that the violation proximately caused the injury. If the plaintiff was the sole proximate cause of his injuries, then the conduct of any other party, whether a violation or not, could not logically act as a proximate cause of the injury. Without the element of proximate causation, no liability is possible.

Here, the plaintiff set up a 24-foot extension ladder against a light pole, with the base of the ladder resting on top of small "landscaping" rocks. While the plaintiff was on the ladder, "the rocks gave way and then shifted the ladder," causing him to fall. The ladder was not tied off or secured. There were safety ties available at an offsite depot, away from the jobsite, but the plaintiff did not bring them with him to the jobsite.

The defendants, at the lower court, successfully asserted the sole proximate cause defense, which is a complete bar to recovery under the statute. In sum, the plaintiff chose to place the ladder at the spot where the accident occurred and chose not to tie and secure the ladder (insofar as he did not have the ties with him, which were offsite at the depot).

Under these facts, the Appellate Division reversed the lower court's finding that the plaintiff was the sole proximate cause of injuries. The court reiterated the four necessary elements of the defense that must all be present for a finding of sole proximate causation: (1) adequate available safety devices; (2) knowledge that the adequate safety devices were available and that they were expected to use them; (3) the worker's decision, for no good reason, not to do so; and (4) evidence that the worker would not have been injured had they not made that choice.

The court held: "Although the plaintiff testified at his deposition that he could have placed the ladder in the driveway, where it would not have been resting on the rocks, he further testified that "it wasn't safe for me to place it there, because that's where trucks drive in." Further, UNF and Protection One failed to submit evidence that the plaintiff's injuries could have been prevented if the plaintiff had secured the ladder to the light pole with ties, which were available at Protection One's depot, not the job site."

The takeaway: sole proximate cause brings great value to the defense but carries a heavy evidentiary burden. The evidence must establish the four necessary elements of the defense to be successfully asserted. Anything short of that will likely result in a finding that the plaintiff's conduct constitutes evidence of comparative fault, which is inadmissible and cannot act as a defense to liability under the statute. Moreover, the final prong of the defense may often require an expert, and one should be consulted to the extent feasible.

A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she "(1) 'had adequate safety devices available,' (2) 'knew both that' the safety devices 'were available and that [he or she was] expected to use them,' (3) 'chose for no good reason not to do so,' and (4) would not have been injured had [he or she] 'not made that choice'" (Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 NY3d 1166, 1167-1168, quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d at 40; see Lojano v Soiefer Bros. Realty Corp., 187 AD3d at 1162).


labor law, new york, construction, litigation