Decision Date21 December 2004
Citation790 N.Y.S.2d 74,823 N.E.2d 439,4 N.Y.3d 35
CourtNew York Court of Appeals Court of Appeals

Ellenberg & Rigby, LLP, New York City (Kenneth Arthur Rigby, John Wiess and Elena Yun of counsel), for appellant.

Fischbein Badillo Wagner Harding, New York City (Christopher

A. Marothy and Don Abraham of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.



We decide in this case that, where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240 (1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred.

Facts and Procedural History

Since we are reviewing a grant of summary judgment in plaintiff's favor, we state the version of the facts most favorable to defendant that the evidence will support.

Plaintiff was employed in the reconstruction and repair of the Triborough Bridge. His work required him to go up and down wall-like structures known as "forms." A mechanical device called a "man lift" was sometimes available for this purpose, but when it was unavailable employees were expected to climb and to descend by using safety lines affixed to the forms. Employees wore safety harnesses, equipped with lanyards that could be attached to a hook on the safety line. When the lanyard was attached, the safety line would prevent the worker from falling more than a short distance.

With other workers on the Triborough Bridge construction site, plaintiff attended frequent safety talks that included instruction in the use of safety lines. In addition, several weeks before the accident involved in this case, plaintiff's supervisor, Anthony Dellamorte, "caught him" climbing a form without using a safety line. (Dellamorte remembered this incident as "a month-and-a-half" before the accident; plaintiff thought it was "less than a month" before.) Dellamorte explained to plaintiff the need to attach his lanyard to the safety line when climbing, and plaintiff, for the time being, complied.

On the day of the accident, plaintiff was working inside the upper part of a form, applying grease from a bucket to certain rods. He ran out of grease, went down to the ground to refill his bucket, and started to climb up again. The man lift was in use elsewhere, but plaintiff could readily have used a safety line to climb; such a line was attached to the side of the form where plaintiff climbed, some 10 feet away. Near the safety line were horizontal ribs in the structure on which plaintiff could have rested his grease bucket as he went up.

Plaintiff chose not to use a safety line. Instead, he used a "position hook" on his safety harness; this hook was designed not for use in climbing, but to hold plaintiff stationary while he worked. His procedure was to connect the position hook to the form; put his grease bucket on a nearby ledge; climb to the next cross beam; remove the position hook and reinsert it at a higher point; move the grease bucket up a level; and repeat the process. He fell while climbing, from a height of approximately 10 to 15 feet, and was injured.

Plaintiff sued defendant, the owner of the Triborough Bridge, on several theories, including an alleged violation of Labor Law § 240 (1). Supreme Court granted summary judgment for plaintiff on the section 240 (1) claim, rejecting the argument that plaintiff was a "recalcitrant worker." The Appellate Division, with one Justice dissenting, affirmed, holding that "the recalcitrant worker defense is not applicable" because defendant did not show that plaintiff had "`disobeyed an immediate instruction to use a harness or other actually available safety device'" (4 AD3d 236, 236 [2004] [emphasis added], quoting Sanango v 200 E. 16th St. Hous. Corp., 290 AD2d 228, 228 [1st Dept 2002]). The Appellate Division granted leave to appeal on a certified question. We now reverse.


Labor Law § 240 (1) provides in relevant part:

"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

As we explained in Blake v Neighborhood Hous. Servs. of N.Y. City, Inc. (1 NY3d 280 [2003]), this section creates a liability that is strict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors and owners are liable under the statute...

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