In Hagins v. State of New York, 81 NY2d 921 [1993] "claimant was injured when he fell from the top of an unfinished abutment wall that rose some 15 feet above a road construction site." The asserted defense was that the plaintiff had been instructed not to walk across the abutment, and, indeed, had been told not to do that more than once. The Court of Appeals stated that such instructions were of themselves insufficient to render the plaintiff a "recalcitrant worker" since there had been no "refusal" to use available safety devices (id., at 921).