1. Distinguish Comparative Fault from a Complete Causation Defense
Section 240(1) imposes a nondelegable duty on covered owners, contractors, and statutory agents. Liability requires a violation of the statutory safety duty that proximately caused an elevation-related injury. In Blake v. Neighborhood Housing Services (2003), the Court of Appeals rejected comparative negligence as a defense to established liability. A sole-proximate-cause defense instead argues that no statutory violation caused the injury.
Separate Shared Fault from Sole Proximate Cause
A worker may make a poor choice while inadequate equipment also contributes to an injury. That is shared fault, not sole causation.
| Issue | Comparative Fault | Sole Proximate Cause |
|---|---|---|
| Worker's conduct | Contributes to the accident | Alleged to be the only proximate cause |
| Statutory violation | Remains a contributing cause | No statutory violation caused the injury |
| Effect under § 240(1) | Does not reduce liability | Can defeat liability if proved |
Worker's conduct
- Comparative FaultContributes to the accident
- Sole Proximate CauseAlleged to be the only proximate cause
Statutory violation
- Comparative FaultRemains a contributing cause
- Sole Proximate CauseNo statutory violation caused the injury
Effect under § 240(1)
- Comparative FaultDoes not reduce liability
- Sole Proximate CauseCan defeat liability if proved
Ask What Made the Fall or Load Dangerous
A fall alone does not establish a violation. Look at the risk, the protection provided, and the cause of injury.
- Identify whether a ladder, scaffold, hoist, or other device failed to give proper protection.
- Determine whether that failure contributed to the injury, rather than merely preceding it.
- Separate § 240(1) liability from broader construction accident claims.
2. Test Sole Proximate Cause and Recalcitrant Worker Arguments
Simply placing safety gear on a jobsite does not establish a defense. In Cahill v. Triborough Bridge & Tunnel Authority (2004), the Court of Appeals identified evidence a jury could consider: suitable devices were available, the worker knew to use them, and a choice made without good reason caused the accident. A recalcitrant-worker argument therefore requires more than a posted warning.
Examine the Device and the Worker'S Choice
Ask whether the worker could realistically use the device and whether that choice caused the injury.
- Confirm that adequate equipment was actually available for the assigned task.
- Check whether the worker knew where it was and was expected to use it.
- Assess whether there was a good reason not to use it and whether using it would have prevented injury.
Distinguish Refusal from Inadequate Protection
A written safety policy alone may not prove refusal. Instructions, availability, and equipment suitability matter together.
- Preserve the actual instruction and evidence that it reached the worker.
- Check whether the device fit the task and was accessible when needed.
- Identify missing anchors, unsafe placement, or other defects affecting protection.
3. Challenge Statutory Coverage before Debating Worker Conduct
Section 240(1) does not cover every workplace accident. It addresses listed building or structure activities and gravity-related risks that require proper protection. Runner v. New York Stock Exchange (2009) confirms that neither a falling worker nor an object striking the worker is indispensable. The defendant must also qualify as an owner, contractor, or statutory agent.
Review the Work, Hazard, and Responsible Party
A job title or elevated worksite alone does not determine coverage. Examine the task and accident mechanism.
- Identify the precise task and whether it qualifies as protected work.
- Evaluate gravity-related forces, including falling workers or inadequately controlled loads.
- Identify the owner, contractor, or party delegated authority over the injury-producing work.
Identify the Statutory Exemption and Other Claims
First establish who owes the statutory duty; fault allocation cannot resolve that question.
- Check the one- or two-family homeowner exception when the owner did not direct or control work.
- Check whether a claimed statutory agent received authority over the relevant work.
- Keep contract-related construction litigation disputes distinct from § 240(1) defenses.
4. Preserve Evidence That Tests Each Defense
Disputes often turn on the equipment available when the injury occurred. Photos, instructions, and witness accounts can show whether protection was suitable and accessible. A claim that the worker was careless is no substitute for evidence showing sole causation. Workers should preserve the same records to explain why an alternative device was not practical.
Record Equipment and Instructions Promptly
Worksites change quickly. Record the original equipment condition and instructions.
- Keep photographs of ladders, scaffolds, anchor points, and the surrounding work area.
- Retain inspection records, safety instructions, training materials, and equipment logs.
- Record which equipment witnesses saw and what instructions they heard.
Match the Proof to the Claimed Defense
Compare each account with the physical scene, including possible equipment defects.
- Test whether an equipment deficiency contributed to the gravity-related injury.
- Confirm what the worker knew and whether another safe method was practical.
- Keep causation distinct from general workplace safety and health compliance.
5. Frequently Asked Questions
Does an OSHA citation automatically prove a Section 240(1) claim?
No. The plaintiff must establish the statute's own coverage, violation, and causation requirements.
Can a worker sue a property owner without proving direct supervision?
Potentially. Covered owners have a nondelegable duty, subject to statutory exceptions and proof of a qualifying violation.
Does a written safety warning establish a recalcitrant worker defense?
Not by itself. A court examines available protection, the worker's knowledge, refusal, and the cause of the accident.
Can an injured worker also have a workers' compensation claim?
Possibly. Workers' compensation and a claim against a qualifying third party involve distinct rules and defendants.
6. Review a Section 240(1) Defense with SJKP
An injury report rarely explains whether the protective device was adequate or available. SJKP's attorneys can review the statutory duty, jobsite records, and competing accounts of causation. Contact SJKP to discuss the work, equipment, and facts relevant to a Section 240(1) claim or defense.
15 Oct, 2026
