New York

In Silvia v. Bow Tie Partners, LLC, the Appellate Division, Third Department addressed a sole proximate cause issue within the Labor Law sec. 240(1) context.  In Silvia, the plaintiff was allegedly injured when a plank on which he was standing as part of a makeshift scaffold broke beneath him, causing him to fall several feet.  Notably, the defendant D & B Acoustical -- the plaintiff's employer -- supplied deposition testimony of a carpenter it employed.  The testimony revealed that the carpenter observed the plaintiff with the plank that ultimately broke and told him not to use it because it was cracked.  The testimony also revealed that the plaintiff told the carpenter that he did not care if the board was cracked.  D & B proffered evidence that there were OSHA complaint planks next to a dumpster just outside a doorway adjacent to the area where the plaintiff was working.  A expert also opined that (1) scaffolds are safety devices for the purposes of sec. 240(1), and (2) the scaffold planking used here was compliant with applicable regulations and that to the plaintiff's injuries were caused by his failure to use a sound plank that was available.

The Third Department concluded that D & B raised questions of fact with regard to whether there was a statutory violation and whether the plaintiff's conduct was the sole proximate cause of his injuries.  Between Panels, the Third Department is inconsistent as to the sole proximate cause defense (a point discussed in the next post regarding Murray v. Arts Center & Theater of Schenectady, Inc.)