Plaintiff’s Failure to Replace Manhole Cover Was Sole Proximate Cause of Injury

Over a dissent, the Second Department determined plaintiff’s failure to replace a manhole cover was the sole proximate cause of his injury:

As to Labor Law § 240(1), which imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability would attach where a violation of that duty proximately caused injuries … . Conversely, where a plaintiff’s own actions are the sole proximate cause of the accident or injury, no liability attaches under the statute … . Where a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, Labor Law § 240(1) does not apply … .

Here, plaintiff was provided with the perfect safety device, namely, the manhole cover, which was nearby and readily available. He disregarded his supervisor’s explicit instruction given that day to replace the cover before dismantling the enclosure. Plaintiff has not afforded any good reason why he started taking apart the enclosure before ascertaining whether the cover was in place. Having just emerged from it, plaintiff should have known that the manhole was still open, and covering it at that time would have avoided the accident. Barreto v Metropolitan Transp Auth, 2013 NY Slip Op 07118, 1st Dept 10-31-13