Skip to Main Content
Services Talent Knowledge
Site Search


Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 19, 2016

Fourth Department Signals Expansion of Sole Proximate Cause Defense

A recent Appellate Division, Fourth Department, decision may signal an expansion of the "sole proximate cause" defense in Labor Law § 240(1) cases where a defendant alleges that a plaintiff's failure to use available safety devices was the sole proximate cause of the accident.

Labor Law § 240(1) is an absolute liability statute governing falls at worksites. Any violation (by failing to provide safety devices to protect the worker from falling) results in absolute liability of the defendant.

To prevail on a Labor Law § 240(1) claim, a plaintiff "must establish that the statute was violated and that such violation was a proximate cause" of the injury. The Court of Appeals has held that there is no liability where "safety devices that plaintiff alleges were absent were readily available at the work site, "¦ and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident." In such a case, the plaintiff's negligence is the sole proximate cause of the injury.

In Scruton v Acro-Fab Ltd., 2016 N.Y. App. Div. LEXIS 7308 (4th Dep't Nov. 10, 2016), however, over the dissent of two Justices, the Fourth Department reversed summary judgment for plaintiff, finding a triable issue of fact as to whether plaintiff's failure to use an available ladder was the sole proximate cause of his fall.

Plaintiff fell from the outer wall of a building extension when a roof truss he was installing began to tip. He apparently had one foot on the top of the wall and one foot on the truss. He was not using a ladder.

In Scruton, plaintiff's own papers raised an issue of fact whether "plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so"¦"

The holding is significant due to several factors, noted in the dissent, which historically would have warranted summary judgment in favor of a Labor Law § 240(1) plaintiff. Although ladders may have been present at the work site, it appeared to be undisputed that "none had been erected for plaintiff's specific task." There was no evidence that plaintiff had been trained or instructed to use a ladder in the job he was performing.

Plaintiff also testified that he didn't use the ladder due to a "speed issue" and there was evidence that he had complained about the excessive speed of the project, which was the pace set by the employer.

To the extent Scruton may enlarge the sole proximate cause defense, defense counsel would be wise to assert it aggressively where applicable. We will be watching carefully to see whether, and to what extent, the New York Court of Appeals will further address this issue.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or


Click here to sign up for alerts, blog posts, and firm news.

Featured Media


Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Competello, Fernandez, Liz, Riley, and Trippett—Targeting Businesses in Recent Flurry of Lawsuits


CDPAP Providers Get First Look at the Future of CDPAP Without FIs


New York State Fiscal Year 2025 Budget: Implications for Employers Unpacked


Lab Providers Under Increased Scrutiny From Civil and Criminal Agencies for OTC COVID-19 Test Claims


NYS Appellate Court Dismisses Claim Based on Material Misrepresentations in Insurance Application


It's Not Over Yet. Turning Your Judgments Into Dollars.

We're Growing in DC!

We’re excited to announce Barclay Damon’s combination with Washington DC–based Shapiro, Lifschitz & Schram. SLS’s 10 lawyers, three paralegals, and four administrative staff will join Barclay Damon while maintaining their current office in DC’s central business district. Our clients will benefit from SLS’s corporate, real estate, finance, and construction litigation experience and national energy-industry profile, and their clients from our full range of services.

Read More

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out