On February 18, 2020, in Biaca-Neto v. Boston Road II Housing Development Fund Corporation, et al., the Court of Appeals of New York, our highest state court located in Albany, issued a decision regarding a construction accident case. I’m happy to say this was a good decision that recognizes the realities of the construction site for the workers. The decision was split, with four judges ruling for the worker and three dissenting. Specifically, this decision dealt with the “sole proximate cause” defense, which is the only available defense for general contractors and owners sued under New York’s Labor Law 240(1), otherwise known as the “Scaffold Law.” In order for defendants (general contractors and owners) to prove that the injured worker was the “sole proximate cause,” they must show that the worker (1) “had adequate safety devices available,” (2) “knew both that” the safety devices “were available and that [they were] expected to use them,” (3) “chose for no good reason not to do so,” and (4) would not have been injured had they “not made that choice” (Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004]). Waldemar Biaca-Neto was a construction worker who, on his third day on the job site, saw his coworker enter the building under construction by climbing through a window cut-out accessed by the scaffolding on which they were working. He then attempted to enter the building in the same way and slipped and fell to the scaffold platform, suffering injuries. Two of Biaca-Neto’s coworkers provided sworn statements that they also “used the scaffolding ‘to go into the building . . . through the openings for windows at different floor levels.’” The general contractor had a “standing order” that workers were not allowed to enter the building through the window cut-outs, but did not present any evidence that they or anyone else advised Biaca-Neto of the alleged rule. The Court of Appeals reversed the decision of the court below and found that Biaca-Neto should be able to proceed to trial on his Scaffold Law claim because the defendants did not prove that Biaca-Neto knew he was expected to use means other than the window cut-outs to access the building, especially considering the “apparent accepted practice of entering the building through the window cut-outs from the scaffolding.” Importantly, the Court quoted the dissent from the First Department below which stated that the majority there “(and the dissent here) ‘ignore[] the evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose’ (176 A.D.3d 1, 10, 107 N.Y.S.3d 7 [1st Dept. 2019] [Moulton, J., dissenting in part]). As someone who focuses a large part of his law practice over 40 years on representing construction workers, I believe that what the Court realized, as did the dissent below, is that these unsafe practices are allowed to go on all the time on construction sites, regardless of standing orders, and the only time we start to hear about these alleged safety rules is after someone gets hurt. Even if the standing orders or rules did exist, when other workers on the site are constantly breaking them and the supervisory workers are allowing it to happen, they have essentially made the rule meaningless and shouldn’t be able to then turn around after someone gets hurt and claim the worker broke the rule in order to prevent them from receiving compensation for their injury. That being said, all of these situations are fact specific and if you are injured in a construction accident, you should contact an experienced construction accident attorney to discuss your options. While the onus is on the general contractors and owners to provide a safe worksite, if a worker truly fails, for no good reason, to utilize a safety device on the site that they knew they were expected to use, and get injured as a result, then they may lose their construction accident case. So while the law in New York is strong in protecting workers, there is a limit to what workers can do.