In the recent case of Claesen v VRD Contracting, Inc., an Appellate Court once again invokes the sole proximate cause defense to refer one of these claims to a jury.

Background

In August of 2017, William Claesen was working for Certified Interiors, a carpentry subcontractor, on a project at the Miller Avenue Elementary School of the Union Free School District of Shoreham Wading River in Shoreham, NY. Certified was hired by VRD Contracting, the project’s general contractor. At that time, Mr. Claesen was performing spackling in the gymnasium with the use of a scaffold. Mr. Claesen placed his spackle bucket on top of the scaffold so he could reach it easily during his work. Once Mr. Claesen finished his work in the gymnasium, he and a coworker had to move the scaffold to the next room. In order to do so, because the scaffold had to pass under a partition wall in the ceiling, they had to disassemble the scaffold’s safety railings and toeboards, which they did. When they went to move the scaffold, the spackle bucket, which was still on top of the scaffold, fell off and struck Mr. Claesen in the back, causing injuries.

Mr. Claesen commenced suit against VRD and others, alleging violations of the Scaffold Law. At the end of discovery, Mr. Claesen made the typical plaintiff’s motion for summary judgment on the issue of liability. Here, because Mr. Claesen had himself both placed the spackle bucket on top of the scaffold and had partially disassembled it, the defendants cross-moved for summary judgment dismissing the claim, arguing that Mr. Claesen’s actions were the sole proximate cause of his injuries.

Decision

The motion court denied Mr. Claesen’s motion and granted the defendants’ motions, finding that as the spackle bucket was placed on the scaffold by Mr. Claesen, and as he removed the safety devices from the top of the scaffold while leaving the spackle bucket on top, he was the sole proximate cause of his injuries and could not recover under the Scaffold Law. Mr. Claesen appealed, and the appellate court modified the motion court’s order so as to deny the defendants’ motions for summary judgment dismissing the complaint.

However, the appellate court did not go so far as to reverse the denial of Mr. Claesen’s own motion for summary judgment. In doing so, that court acknowledged that where the plaintiff is the sole proximate cause of his or her own injuries, there is no liability under the Scaffold Law. But it found that liability could not be determined on the motions, as a matter of law, without a finding of fact that it was Mr. Claesen’s responsibility to check the top of the scaffold before moving it (which would make him the sole proximate cause of his injures). Accordingly, the appellate court referred the case to a jury to determine whether Mr. Claesen was the sole proximate cause of his injuries. 

Comment

In the not-so-distant past, an injured plaintiff’s motion for summary judgment on liability in a Scaffold Law claim was granted as a matter of course. However, in recent years, courts have been more receptive to finding that there can be issues of fact as to whether the sole proximate cause defense (or a related defense for recalcitrant workers who affirmatively disregard safety instructions) applies. In such cases, courts will deny those plaintiffs’ motions, ordering a trial and sending those cases to their respective juries.

Historically, with summary judgment on the issue of liability in hand, a plaintiff’s counsel could engage in hardball negotiations because the only question is how big the check is going to be. Clearly, with a young worker—particularly a union worker—economic damages are going to be significant, and plaintiff’s counsel has that in mind during those negotiations. Accordingly, while having a Scaffold Law claim dismissed on a motion for summary judgment is a blue rose, having such a claim referred to a jury (because there is a genuine issue of fact to be tried) is a huge victory because it turns the question from one simply as to how big the check to the injured plaintiff is going to be, to one of whether there is going to be a check at all. In that regard, the settlement discussions are less one-sided, and a less costly settlement can be reached. 

In order to put you in the best position to defeat a plaintiff’s motion and reach that jury, the best course of action is for contractors to document their safety plans and procedures, and communicate them to employees and job site contractors—and do so on an ongoing basis. Similarly, when an accident occurs, thorough photographing and documenting of the accident and any item related to the accident is crucial.

About the authors: Thomas H. Welby, Esq., P.E., is General Counsel to the CIC and the BCA, and is a co-founder and Senior Counsel of Welby, Brady & Greenblatt, LLP. Gregory J. Spaun, Esq., is General Counsel to the Queens and Bronx Building Association and a partner with the firm.

Published: December 11, 2025.