Background
Peter Tobon was working on a construction project when a scaffold tipped while a coworker pushed it. Tobon was riding on the scaffold as it moved and fell when it overturned. He and a derivative claimant sued Turner Construction Company and other defendants under Labor Law § 240(1), New York’s Scaffold Law, which places responsibility on owners and contractors to furnish elevation-related safety devices that are constructed, placed, and operated to provide proper protection.
Supreme Court, New York County, granted Tobon partial summary judgment on liability. The defense argued that the scaffold was not shown to be defective, that no earlier problem with it had been identified, and that Tobon caused the accident by remaining on the scaffold while it was moved. The general contractor had instructed workers not to ride or “surf” a moving scaffold, supporting a claimed recalcitrant-worker or sole-proximate-cause defense.
Both sides submitted expert evidence addressing the accident’s mechanics. Importantly, their experts attributed the occurrence to the scaffold’s operation. The appeal therefore asked whether a physically intact scaffold can be inadequate under § 240(1) when it tips during movement, and whether the worker’s participation in moving it eliminates statutory liability.
For the sole-proximate-cause defense, defendants generally must identify an adequate safety device that was available, show that the worker knew it should be used and was expected to use it, and prove that the worker unreasonably chose not to do so. Evidence that the worker participated in an unsafe operation does not satisfy that demanding framework when the furnished scaffold itself failed to protect against the fall.
The distinction between a specific refusal and a general instruction also shapes discovery. Daily logs, toolbox talks, supervisor testimony, photographs, and evidence about alternative equipment can matter more than a written rule viewed in isolation. The First Department treated the project’s actual operation—not an abstract instruction—as decisive on this summary-judgment record.
The Court’s Holding
The First Department unanimously affirmed partial summary judgment for Tobon. A Labor Law § 240(1) plaintiff need not identify a broken component, a code violation, or prior malfunctions. The relevant question is whether the safety device actually provided adequate protection from an elevation-related gravity risk. A scaffold that tips over while being operated can fail that standard even if its physical structure remains intact.
The panel also rejected sole proximate cause. Nothing showed that moving the scaffold with Tobon aboard was his independent plan or that he unilaterally devised the operation. Because the accident arose from the scaffold’s operation and the supplied device did not keep him safe, the statutory violation remained a proximate cause. Tobon’s possible carelessness could amount to comparative negligence, but comparative negligence is not a defense to § 240(1) liability.
The instruction not to ride or surf the scaffold did not establish the recalcitrant-worker defense. Under New York precedent, a general safety instruction is not equivalent to proof that the worker deliberately refused to use an available, adequate safety device. The defendants therefore failed to raise a triable factual issue defeating liability, leaving damages and other unresolved issues for further proceedings.
Key Takeaways
- A scaffold may be inadequate under Labor Law § 240(1) because of how it is operated even when no physical defect or safety-code violation is proved.
- Riding a scaffold while a coworker moves it does not establish sole proximate cause when the method was not the injured worker’s independent device.
- A general instruction not to ride a moving scaffold does not, without more, prove the recalcitrant-worker defense.
Why It Matters
The ruling matters to contractors, owners, construction managers, insurers, and the plaintiffs’ bar because mobile-scaffold cases often become disputes over worker conduct. The First Department’s analysis keeps the focus on whether the furnished device provided proper protection during the work method that produced the fall, not solely on whether hardware broke or the worker made a poor choice.
Project teams should adopt and enforce a safe method for repositioning scaffolds, including dismounting, wheel-lock procedures, supervision, and documented training. Litigation counsel should develop evidence about who directed the move, whether an adequate alternative device was available, and whether a worker actually refused a specific safety instruction; a broad prohibition alone will not carry the statutory defenses.
The decision also underscores a recurring New York appellate lesson: statutory text, the procedural posture, and a carefully developed record work together. Practitioners should preserve the facts that connect the governing rule to the requested remedy rather than rely on labels or broad policy assertions.