In Ramirez v. Willow Ridge Country Club, Inc., the plaintiff was in the process of demolishing a second-story deck attached to the defendant's building when he allegedly fell off the deck through a space where the railing had been removed. By contrast, his foreman testified that plaintiff was straddling between an A-frame ladder and an extension ladder affixed to the building when a gutter he was removing broke free, causing plaintiff to lose his balance and fall. The foreman further testified that he specifically admonished the plaintiff to stop.
The jury returned a verdict finding that the defendant had violated Labor Law 240(1), but that the violation was not a substantial factor in causing the accident. In affirming the jury's verdict, the First Department observed that the jury was instructed that it should find for defendants if the jury concluded that plaintiff's actions were the only substantial factor in bringing about the accident. As such, the jury specifically had not been instructed on the recalcitrant worker defense. The Court held that the verdict was consistent with the charge and "pereceive[d] no ground upon which [the] verdict should be disturbed."
For those who are curious as to what the PJI has to say with respect to the "recalcitrant worker defense," the proposed charge is found at PJI 2:217.2, and suggests that the jury be charged the following:
If, however, you decide that plaintiff in this case was a “recalcitrant worker,” then you must find for the defendants. Recalcitrant means that the worker deliberately and unreasonably failed or refused to use an available and adequate safety device. “Deliberately” means intentionally. It does not mean negligently or carelessly. In order to establish that the plaintiff was a recalcitrant worker, the defendant has the burden of proving (1) that [specifiy device such as safety harnesses/vests and tie lines] were provided to the plaintiff and were adequate and safe (2) plaintiff knew both that the safety harness and tie lines were available and that he was expected to use them (3) he chose for no good reason not do to so and (4) had he not made that choice he would not have been injured.
If the foregoing conditions are met, then you will have determined that plaintiff was the sole proximate cause of his accident, and you need proceed no further.
If, however, you decide that plaintiff in this case was a “recalcitrant worker,” then you must find for the defendants. Recalcitrant means that the worker deliberately and unreasonably failed or refused to use an available and adequate safety device. “Deliberately” means intentionally. It does not mean negligently or carelessly. In order to establish that the plaintiff was a recalcitrant worker, the defendant has the burden of proving (1) that [specifiy device such as safety harnesses/vests and tie lines] were provided to the plaintiff and were adequate and safe (2) plaintiff knew both that the safety harness and tie lines were available and that he was expected to use them (3) he chose for no good reason not do to so and (4) had he not made that choice he would not have been injured.
If the foregoing conditions are met, then you will have determined that plaintiff was the sole proximate cause of his accident, and you need proceed no further.
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