A construction worker who was doing masonry work on a school building was injured when he was struck by a scaffold plank that fell from the fourth floor while the scaffold was being dismantled. Because of the falling object, the injured worker sustained a neck injury and a severe shoulder injury, which required surgery. Under the New York Labor Law, the injured worker asked the Court that the owner and general contractor be found completely responsible for the accident because of their failure to properly dismantle the scaffold and for not securing the scaffold plank, which fell and injured the worker. Under the labor law, an owner and general contractor can be held strictly liable for an accident if the scaffold does not afford proper protection for the worker or material that should have been secured or was being hoisted fell from a height and struck a worker below. The defendant owner and general contractor argued that the injured worker was a "recalcitrant worker", a worker who ignores specific instructions. This is a defense to labor law liability. The owner and general contractor will not be held responsible for an accident if it is shown that a worker ignores a specific instruction or does not make use of a safety device, which would have protected the worker. We argued that the injured worker was never given any specific instructions nor did he ignore even a general instruction. We further argued that the defendant owner and general contractor did not establish that the injured worker did not make use of an available safety device, which would have prevented the accident. The Court rejected all of the defendants' arguments and granted the injured worker's motion, finding that the defendants under the labor law were completely responsible for the accident. This case is set to go to trial sometime in 2010. - Ellis v. City of New York, et al., Supreme Court, Kings County, Index No. 22457/08.