The lowering threshold of recalcitrance:
recent changes in the Scaffold Law, part 2

In Smith v Hooker the plaintiff had decided to work without re-erecting the safety equipment that had been packed away the previous night; his fall would have been prevented had he taken the time to do so. The Fourth Department began its discussion by examining the difference between sections 240 (1) and 202 of the Labor Law:

[I]n section 202 of the Labor Law, pertaining to window washers and others, the Legislature specifically provided that "[e]very employer and contractor ... shall comply with this section and the rules of the board and shall require his employee ... to use the equipment and safety devices ...". Its failure to enact a similar requirement in section 240 must be interpreted as an indication that the Legislature did not intend to impose a similar absolute duty of supervision under section 240 (McKinney's Statutes, § 74) (89 AD2d, at 365-366).

It concluded,

While the Legislature has sensibly acted to protect workers from a failure by owners or contractors to supply equipment or for supplying faulty equipment, the statutory protection does not extend to workers who have adequate and safe equipment available to them but refuse to use it. Their injuries may be compensated under the provisions of the Workers' Compensation Law (89 AD2d, at 366).

Because defendants governed by § 240 (1) had no absolute duty to supervise workers, a worker who refused to use available safety equipment placed himself outside the section's scope.

The major difficulty in this theory is the flat prohibition on the invocation of comparative negligence in section 240 cases, a prohibition that dates from Koenig v Patrick Constr. Corp. (298 NY 313, 317; see, Rocovich v Consolidated Edison, 78 NY2d 509, 513). Owners and contractors cannot escape responsibility toward even a grossly negligent worker, so long as the violation of section 240 is a proximate cause of the accident. Thus, it would be illogical and inconsistent to cut off entirely a worker who is merely negligent in failing to use available safety devices; this would result in a contributory negligence defense, which had been eliminated in 1975 by CPLR 1411.

This difficulty was addressed by a strict application of the concept of "refusal." The only workers denied recovery would be those who consciously and overtly rejected a command to use an available safety device: the "recalcitrant" worker. In Heath v Soloff Constr. Corp. (107 AD2d 507) the Fourth Department commented at length on the holding in Smith v Hooker, and limited the meaning of recalcitrance so severely that Justice Doerr, in a separate concurrence, suggested only that the court should have recognized explicitly that it was overruling Smith. Although Smith had himself declined to put in place the safety equipment furnished by the employer, in the view of the Heath court that case did not

impose the burden upon the worker to guarantee his own safety by requiring that he construct, place or operate the equipment in a proper manner (107 AD2d, at 511).

It was widely assumed, at least in the Fourth Department, that the Heath decision had eliminated whatever vitality the recalcitrant worker defense had. That conviction was bolstered by several Court of Appeals cases, all of them originating in the Fourth Department. In Stolt v General Foods Corporation (81 NY2d 918), the plaintiff fell from a ladder he had been instructed not to climb. The Court held that the "so-called 'recalcitrant worker' defense *** requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer.*** [A]n instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a 'safety device'" (81 NY2d, at 920, citations omitted).

In Hagins v State of New York (81 NY2d 921), decided at the same time as Stolt, a laborer fell from the top of an unfinished abutment wall. The Court held that

[t]he State's allegations that the claimant had repeatedly been told not to walk across the abutment are not alone sufficient to create a triable issue of fact under the "recalcitrant worker" doctrine that was recognized in Smith v Hooker Chems. & Plastics Corp, since that defense is limited to cases where a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner (81 NY2d, at 922-923, citations omitted).

Defendant's claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railway cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (82 NY2d, at 563).

Since the "available, safe and appropriate equipment" was in the sandhouse in Gordon, the distinction drawn by the Court seems unreal; the choice to use the ladder was necessarily one to refuse the use of the scaffold. All the same, the decision is a sensible one; Gordon's conduct in sandblasting from the ladder was merely negligent, and in Labor Law 240 decisions the refusal to admit the plaintiff's negligence as a defense runs deeper than the recalcitrant worker theory.

For some years, in the Fourth Department, at least, the recalcitrant worker defense continued a kind of nominal existence, being invoked only to be rejected. A typical example was Haystrand v County of Ontario (207 AD2d 978), where the defense was held unavailable when the plaintiff failed to engage the locks on a scaffold he owned; he sued the owner of the building when he fell, and recovered, because, in the Court's view, his "failure *** would go only to the issue of his own negligence, which is not a relevant consideration in a Labor Law § 240 (1) cause of action" (207 AD2d 978). Among the very few cases where a court found actual recalcitrance was the Second Department case of Jastrzebski v. North Shore School Dist. (223 AD2d 67, affd for reasons stated 88 NY2d 946), where the plaintiff disobeyed a direct order the moment the supervisor left the site. This was as good an example of overt misconduct as the plaintiff's alleged misuse of the stepladder in Weininger v Hagedorn and Co. (91 NY2d 958; see my article, From Absolute to Relative Liability: Recent Changes in the Scaffold Law).

In recent years, however, the Appellate Divisions have signalled a retreat from the principles set out in these cases. Among the most striking examples is Hickey v C.D. Perry & Sons (223 AD2d 799), because the facts in that case closely parallel those in Hagins. Plaintiff fell when he tried to cross a sluiceway on a plank, which broke under his weight. Defendants had several times removed similar makeshift bridges, placing ladders on the nearby dam to allow workers to climb to the crest of the dam and cross. The Third Department denied Hickey summary judgment, holding that "a factual question is presented as to whether these [ladders] were adequate safety devices, which cannot be resolved by way of summary judgment" (223 AD2d, at 800). The recalcitrant worker defense similarly required "resolution in a trial forum" (loc. cit.). The Hickey court cites Gordon but seems unaware of that case's strong holding on the recalcitrant worker defense; or the authority, seemingly controlling, of Hagins, where the Court of Appeals affirmed a grant of summary judgment in favor of a worker who himself was injured when crossing a ditch via an unapproved route.

A similar problem arises with cases like the First Department's Marrone v The 740 Corp. (215 AD2d 336), where summary judgment was denied because the area in which the plaintiff fell might have "contained a built-in stairway that could have been used to safely gain access from the floor he was on to the floor he was directed to go to"; and the Third Department's Vona v St. Peter's Hospital of the City of Albany (223 AD2d 903), where a worker fell from a jury-rigged stack of five-gallon pails when a ladder was allegedly available in the area. Both fact patterns are only slightly different from the neglect of the scaffolding in Gordon. Both, in fact, show the plaintiffs to have been guilty of no more than negligence.

But these case were merely a prelude. It has become almost routine for courts to deny summary judgement to plaintiffs where there is any suggestion that an available safety device was not used. The Third Department case of Watso v Metropolitan Life Ins. Co. (228 AD2d 883) is as good a turning point as any. Plaintiff Watso fell from a building superstructure, and testified that his five-foot safety lanyard was unable to reach to the static line to which it needed to be attached, which was eight feet from his work area. The defendant argued that

the static line was not taut but, rather, was loose and capable of being stretched out onto the bar joists so that iron workers welding the bridge could and should be able to tie off (228 AD2d, at 884)

The court went on to conclude, without further discussion:

Defendants' evidence tended to demonstrate that Watso, rather than being unable to tie off, purposefully did not do so. Under the circumstances, defendants have established a legitimate triable issue of fact as to whether the static line afforded Watso proper protection and, hence, whether Watso was a recalcitrant worker to which the protections of Labor Law § 240 (1) do not apply (id., at 884-885, emphasis added).

In the past month the Fourth Department has followed Watso to the letter, where the defendant produced "proof that plaintiff was able to tie off to a safety line or beam and that plaintiff was instructed at weekly safety meetings to tie off at all times when working at a height" (Kulp v The Gannett Co., et al., decided March 19, 1999, slip opn. no. 0229).

Some of the cases cited in Kulp are even more striking. In Job v 1133 Bldg. Corp.

*** an affidavit of the plaintiff's foreman was provided, wherein the foreman alleged that a safety belt had been provided to the plaintiff, which was stored at the end of each day with the plaintiff's workclothes in the shanty on the worksite. The foreman further alleged that the plaintiff was instructed, at weekly safety meetings, to use the safety belt, that the plaintiff had always previously worn the safety belt, and that the safety belt was available to the plaintiff on the date of the accident. The Supreme Court, finding that there was a triable issue of fact regarding whether the plaintiff was a "recalcitrant worker" in that the plaintiff refused to make use of an available safety device, denied the plaintiff's motion for partial summary judgment (251 AD2d 459).

It seems very unlikely that this particular plaintiff overtly refused to use his safety belt on this one occasion. Given his record one might better conclude that the day of the accident was a momentary aberration; but the Second Department affirmed the denial of summary judgment, holding:

The plaintiff's motion for partial summary judgment was properly denied as there was conflicting evidence as to whether a safety device was provided to the plaintiff and whether the plaintiff refused to use the safety device (loc. cit.)

But what is being decided here? These cases were all heard on appeal from summary judgment motions, and in all of them the plaintiff had established a prima facie case. At this point the burden falls on the defendant

to produce admissible evidence to establish the existence of material issues of fact (Weltmann v R.W.P. Group, 232 AD2d 550, citing Alvarez v. Prospect Hosp., 68 NY2d 320).

This standard is to be strictly adhered to;

Indeed, "[s]peculation as to what might be produced if discovery were to be had is not enough to defeat a motion for summary judgment" (id., at 551, citing Carrington v. City of New York, 201 AD2d 525, 527).

As the Court of Appeals has held, in the clearest of terms,

We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v. City of New York, 49 NY2d 557, 560, citations omitted).

deliberate refusal cannot be inferred from unexplained non-use. If mere negligent omission is at least an equally probable inference, either conclusion would be merely speculative; and since mere negligent omission to use an available safety device despite instructions to do so will not support the defense, the defense must fail. ***

[In this case] the record does not provide any evidence whatsoever as to whether decedent refused or merely negligently failed to hook on to the safety line upon returning to the cut area. That deficiency in proof cannot be remedied by conjecture or speculation (Peterson v Barry, Betty & Led Duke, Inc., 171 Misc 2d 346, 349-350, citations omitted).

That, however, is not the course taken by most of the Appellate cases. In every one of the decisions cited, as well as others such as Harrington v State of New York (__AD2d__, 681 NYS2d 122), the defendant's evidence was merely that there was some sort of safety device available and that the plaintiff did not use it. On the basis of the reported decisions it is fair to say that none of these defendants offered proof of actual recalcitrance -- that is, an adamant or overt refusal to make use of a safety belt or other device. This might have been an explanation for the plaintiff's conduct, but so might inattention, carelessness, or the mistaken belief that a few minutes' work would not put him in danger -- any one of which would be, at the worst, simple negligence. One cannot presume recalcitrance from these facts; to do so is to engage in speculation as to the possible proof at trial. Curiously, there remains an inconsistency even within courts on this issue. The Fourth Department drew a distinction between negligent failure to use a safety device and outright refusal to do so in Mack v Ford Motor Co. (245 AD2d 1055), saying

Although plaintiff did not use the safety equipment available at the worksite, defendant presented no evidence that plaintiff "refused" to use the safety equipment and thus was a recalcitrant worker. (See also, VanAlstyne v New York State Thruway Auth., 244 AD2d 978; Kanney v Goodyear Tire & Rubber Co., 254 AD2d 1034).

But the trend of the cases is clear. By a piece of linguistic sleight-of-hand, "refusal" has come to mean "failure," and "recalcitrance" has come to mean "negligence." The defendants' proof in Watso, Job, and Kulp at best was proof of negligence. If courts are to consider this showing to be proof of recalcitrance, then there is nothing left of the concept of the recalcitrant worker, as one whose acts are contumacious or overt rather than merely careless. In that case the defense of the plaintiff's negligence has returned to the Scaffold law under a new guise.

It is a return with a vengeance, moreover, bringing with it the long-dead defense of contributory negligence. The recalcitrant worker defense is not like comparative negligence; it is a complete defense. A plaintiff found to have been recalcitrant is deprived of any recovery beyond Workers' Compensation. The paradoxical result of lowering the threshold of recalcitrance is that Scaffold Law plaintiffs, once the most favored in law because of the dangerous nature of their work, are becoming the most severely penalized for their own negligence. It would be better for them to proceed under Labor Law § 241 (6), under which the amount of the plaintiffs' recovery but not their right of action is affected.

This revival of the recalcitrant worker defense is not surprising, given the extraordinary breadth given section 240 in the past decades. In the expansionist and prosperous 1960s and 1970s what had once been a limited statutory cause of action focusing on safety equipment became a form of insurer's liability against all elevation-related hazards in construction work. Today's judicial and social climate is more wary of such liability. If cases like Zimmer v Chemung County Performing Arts (65 NY2d 513) and Bland v Manocherian (66 NY2d 452 went far in the direction of employees' rights to recover, more recent courts have seen the pendulum swing the other way.

There is certainly room for the reevaluation of doctrines and holdings such as these; but such changes should be made consciously and openly. Courts would do well to pay close attention to the effect their language will have on the interrelated obligations and responsibilities that make up the legal system. It is surely not the Appellate Divisions' intent to overrule the Court of Appeals and reinstate the plaintiff's negligence as the defense it once was under Labor Law § 240; nor are they attempting to bypass CPLR 1411 and return to the rule of contributory negligence. Yet many recent cases are moving in that direction, if they have not already arrived there, and they have done so through the redefinition of such apparently simple words as "refuse" and "recalcitrance." In the legal world it is vitally important to mind one's language. Failure to do so can have consequences as unforseen as a failure to tie off when working at a height.

A shortened version of this paper appeared in the May 10, 1999, edition of the New York Law Journal.

Written contents are © 1999 Andrew V. Siracuse. Design © 1997 Michael Steinberg.