“Sole Proximate Cause” Defense Not Demonstrated

In reversing Supreme Court and granting plaintiff’s motion for summary judgment, the First Department determined the facts did not support the defense that plaintiff was the sole proximate cause of the accident. Plaintiff was injured when a drill rig fell after safety chains had been removed. The First Department determined the facts demonstrated plaintiff was not solely responsible for removing the safety chains and, therefore, the “sole proximate cause” defense was not available:

The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device …. However, “the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … .

Plaintiff did not unilaterally elect to remove the chains and chain binders. Clark, the dock builder foreman who had the discretion to make the determination in the field as to the manner in which the drill rig would be moved, determined that the drill rig could not be pivoted with the chain binders attached, a belief plaintiff shared … .  Boyd v Schiavone Constr Co, Inc, 2013 NY Slip Op 03578, 1st Dept, 5-16-13