New York Civil Law

Tobon v Turner: Recalcitrant Worker Under § 240(1)

At a Glance

Summary: The First Department held that a worker who remained on a mobile scaffold while a coworker pushed it was entitled to partial summary judgment—even though the general contractor had instructed workers not to “ride or surf” the scaffold. The decision explains the critical difference between disobeying a safety rule and refusing to use an adequate, available safety device.

By Matthew S. Lerner
New York appellate and insurance-defense attorney
Decision date: August 20, 2026
Analysis current through: August 26, 2026

Case: Tobon v Turner Construction Co., 2026 NY Slip Op 05065 (1st Dept 2026)

Court: Appellate Division, First Department

Decision Date: August 20, 2026

Topic: Labor Law § 240(1)

What Happened

Peter Tobon was working from a scaffold when a coworker pushed it. The scaffold tipped, and Tobon fell.

The record also contained evidence that the general contractor had instructed workers not to “ride or surf” a scaffold while it was being moved. Defendants relied on that instruction to argue that Tobon’s conduct should defeat liability under Labor Law § 240(1).

Supreme Court, New York County, granted the plaintiffs’ motion for partial summary judgment on the § 240(1) claim.

The procedural posture is important to the analysis. The plaintiffs did not merely survive a defense motion. They obtained judgment on liability. Therefore, after the plaintiffs established that the scaffold failed to provide proper protection and that the failure caused the fall, the defendants had to produce evidence sufficient to create a genuine factual dispute over statutory violation or causation. The First Department concluded that they did not.

The Court’s Decision

The court’s reasoning has four connected parts.

1. The scaffold failed in its protective function

Labor Law § 240(1) requires scaffolds to be “constructed, placed and operated” so as to give workers proper protection. The court emphasized the word operated.

The scaffold tipped while a coworker was pushing it. Both the plaintiffs’ and the defendants’ experts attributed the accident to the scaffold’s operation. That common ground made it difficult for the defendants to separate the fall from the statutory protective device.

2. The plaintiffs did not have to prove a physical defect

The court rejected the idea that the plaintiffs had to identify a broken component, prior malfunction or regulatory violation. The dispositive question was functional: did the scaffold, as constructed, placed and operated, protect the worker from the elevation-related hazard?

It did not.

Relying on Zimmer v Chemung County Performing Arts, 65 NY2d 513 (1985), Williams v 520 Madison Partnership, 38 AD3d 464 (1st Dept 2007), and Ortega v Trinity Hudson Holding LLC, 176 AD3d 625 (1st Dept 2019), the court held that a scaffold can violate § 240(1) when it tips even if its physical components remain intact.

3. Tobon’s participation was not the sole proximate cause

The court acknowledged that Tobon participated in the process of moving the scaffold by remaining on it. But the record did not show that moving the occupied scaffold was Tobon’s “independent devise.” A coworker was pushing it, and the device’s operation contributed to the accident.

Thus, Tobon’s conduct did not eliminate the statutory cause. At most, it supplied a comparative-negligence argument, and comparative negligence does not reduce or defeat liability under § 240(1).

4. The “do not ride or surf” instruction did not establish recalcitrance

The general contractor’s direction told workers what not to do. It did not establish that Tobon refused to use a particular adequate safety device that had been supplied for moving the scaffold or accomplishing the work.

Under Gordon v Eastern Ry. Supply, 82 NY2d 555 (1993), an instruction to avoid an unsafe practice cannot, by itself, support the recalcitrant-worker defense. The First Department therefore held that defendants failed even to raise a triable issue on recalcitrance.

Why the Scaffold Did Not Need To Be Physically Defective

One of Tobon’s most useful points is that “defect” can be the wrong organizing concept in a Scaffold Law case.

The statutory language is broader. The owner or contractor must furnish a device that is properly: constructed, placed, and operated.

A scaffold can be made of sound components and still fail the statute because of how it was placed or operated. A mobile scaffold that tips while occupied has failed to perform its core protective function, even if no wheel, brace, rail, or platform physically breaks.

The First Department has applied that functional approach before. In Ortega, it recognized liability when a scaffold tipped without any physical compromise. In Perez v 1334 York, LLC, 234 AD3d 455 (1st Dept 2025), the court treated the plaintiff’s movement of a mobile scaffold while using it, and his alleged failure to lock its wheels, as comparative negligence where the scaffold lacked required guardrails.

The lesson is important for experts. A defense expert does not answer the § 240(1) claim merely by opining that the scaffold was not broken or that no regulation was violated. The expert must confront the statutory function: why did the supplied device nevertheless provide proper protection during the work and the movement that produced the accident?

In Tobon, both experts attributed the fall to operation. That convergence supported plaintiffs’ causal theory rather than creating a defense issue.

Why Tobon Was Not the Sole Proximate Cause

The phrases “recalcitrant worker” and “sole proximate cause” overlap, but they should not be treated as interchangeable.

Blake v Neighborhood Housing Services of New York City, 1 NY3d 280 (2003) establishes the broader principle: § 240(1) liability does not attach when there was no statutory violation and the worker’s conduct was the only proximate cause of the accident. Cahill v Triborough Bridge & Tunnel Authority, 4 NY3d 35 (2004) explains that classic recalcitrant-worker cases are applications of that sole-proximate-cause rule.

But the defense fails if an inadequate, improperly placed or improperly operated safety device also contributed to the injury. Once the statutory failure is a proximate cause, the worker cannot logically be the sole proximate cause.

That is what happened in Tobon: the scaffold tipped; the tipping arose from its operation; a coworker was moving the scaffold; the process was not shown to be Tobon’s independent invention; and the scaffold did not protect him from the resulting fall.

Even if Tobon exercised poor judgment by remaining on the platform, that conduct did not erase the scaffold’s protective failure. It was therefore comparative negligence, not sole causation.

The court did not hold that riding a moving scaffold can never support a sole-proximate-cause defense. Its ruling was record-specific. A materially different record might show that a worker independently moved or caused the movement of an otherwise adequate scaffold, contrary to a device-specific protocol, after an adequate alternative was supplied and known. But defendants did not make that showing here.

Why Tobon Was Not a Recalcitrant Worker

The answer lies in the kind of instruction that was allegedly disobeyed.

A prohibition is not the same as a provided device

The general contractor instructed workers not to “ride or surf” the scaffold. That direction prohibited an unsafe practice. It did not prove what adequate safety device Tobon should have used instead; where that device or alternative means was located; that the device was suitable for the assigned task; that Tobon knew it was available and expected to use it; that he deliberately refused it without a good reason; or that proper use necessarily would have prevented the fall.

That is the distinction drawn in three foundational Court of Appeals decisions.

In Stolt v General Foods Corp., 81 NY2d 918 (1993), a worker had been instructed not to climb a broken ladder without a coworker securing it. His disregard of that direction did not establish recalcitrance because no adequate safety device had been provided.

In Hagins v State of New York, 81 NY2d 921 (1993), repeated warnings not to walk across an abutment did not establish the defense because the worker had not refused an available guardrail or other supplied device.

And in Gordon v Eastern Railway Supply, Inc., 82 NY2d 555 (1993), the Court held that instructions to avoid unsafe equipment or unsafe practices are not themselves safety devices. Such instructions, standing alone, do not create a factual issue on recalcitrance.

Tobon applies that same rule to a modern mobile-scaffold record. “Do not ride the scaffold” addresses behavior. The defense needed proof of adequate protection and an unjustified refusal to use it.

Claims Professional and Defense Counsel Lessons

1. Do not overvalue a written safety rule

A written rule can help prove knowledge and expectation, but only if it is tied to an adequate device or safe alternative that was actually furnished for the task. “Do not ride a moving scaffold” may establish unsafe conduct; standing alone, it does not establish recalcitrance.

2. Identify the affirmative alternative

The investigation should ask not only what the worker was told not to do, but what the worker was expected to use instead.

For a mobile-scaffold event, determine:

3. Interview the coworker who moved the scaffold immediately

In Tobon, the coworker’s participation undermined the claim that the process was solely the plaintiff’s independent act. Early testimony should address who proposed the movement, who pushed, whether a foreman knew of the practice, how often it occurred, and whether the crew had been given a workable alternative.

4. Audit the defense expert’s causation language

An expert who attributes the accident to the scaffold’s operation may support the plaintiff’s statutory theory unless the opinion also explains why proper protection was supplied and why the worker’s independent choice was the only cause.

5. Separate three different arguments

Defense reports and motion papers should separately analyze:

Collapsing all three into the assertion that the plaintiff “ignored safety instructions” risks turning the defense into an inadmissible comparative-negligence argument.

6. Adjust exposure early in classic tipping cases

When a covered worker falls because a scaffold tips, and no adequate device-specific refusal can be established, liability exposure is substantial. The lack of a broken component or prior malfunction will not, by itself, materially improve the defense.

Calling the worker “recalcitrant” does not lessen any of these burdens.

Conclusion

Tobon v Turner Construction does not make the recalcitrant-worker defense narrower than the Court of Appeals intended. It illustrates why the defense has always been narrow.

The general contractor may have had a sensible rule against riding or surfing a moving scaffold. But § 240(1) asks a different question: did the owner or contractor provide adequate protection, and was the worker’s informed rejection of that protection the only cause of the accident?

The scaffold tipped while a coworker pushed it. Both sides’ experts connected the accident to its operation. The process was not shown to be Tobon’s “independent devise.” And the direction not to ride the scaffold did not identify an adequate device that he deliberately refused to use.

The First Department’s result therefore follows Gordon, Cahill, Gallagher, and Biaca-Neto. For defendants, the lesson is exacting but practical: prove the device, availability, knowledge, expectation, unjustified choice, prevention, and exclusive causation. Without that chain, evidence of a broken safety rule is ordinarily evidence of comparative negligence—and under the Scaffold Law, comparative negligence does not decide liability.

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Questions This Case Answers

Sources

  1. Recalcitrant Worker Defense Under New York Labor Law § 240(1) — the complete defense framework, required proof and investigation strategy.
  2. The Sole Proximate Cause Defense Under New York Labor Law § 240(1) — the broader causation doctrine and controlling Court of Appeals cases.
  3. 2026 New York Scaffold Law Trend: Courts Narrow the Gate — why threshold coverage defenses are gaining traction while classic scaffold and ladder failures remain dangerous.
  4. New York Labor Law §§ 200, 240(1), 241(6) & Scaffold Law — the main Labor Law authority hub.

Photo Credit: Richard Gomez Angel

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