A New York Construction Accident Lawyer Who Represents Injured Workers Tracking Developments in Construction Accident Law.

Those of us who litigate Labor Law 240(1) cases are often confronted with the defense that our client did not use an available safety device that would have prevented his fall and, consequently, was the sole proximate cause of his accident.

These two defenses–not using an available safety device and being the sole proximate cause of the accident–are at times intertwined, as they were in a decision just recently issued by the Court of Appeals. Quite simply, a worker who does not use an available safety device may be deemed the sole proximate cause of his accident. But a worker can do or fail to do other things, independent of whether safety devices are available, that will also make him the sole proximate cause.

On February 11, 2010, the Court of Appeals addressed each of these topics in Gallagher v. The New York Post. In doing so, it built upon earlier decisions addressing the defense of the availability of safety devices, Montgomery (2005) and Robinson (2006).

How the accident occurred was disputed, but it was agreed upon that the plaintiff was cutting with a saw and fell through an uncovered opening in the floor, suffering injury.

The Court held that:

Liability under 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence ist he sole proximate cause of his injury (see Cahill v. Triborough Bridge & Tunnel Auth., 4 Ny3d 35, 39-40 [2004]).

Importantly, the Court determined that there was no evidence that the plaintiff knew where to find the safety devices that were allegedly available to him (in this case, a safety harness) or that he was expected to use them. Critically, there was no testimony that the plaintiff had been told to use such a safety device. Although it was alleged that there had been a standing order that workers were supposed to use safety harnesses, there was no evidence that the order had actually been communicated to workers.

Thus, this decision is significant because it establishes that in order to deny summary judgment to a worker for a 240(1) claim, it must be shown by the defense that the plaintiff knew of available safety devices and unreasonably chose to use them. Defense attorneys will often point to the availability of safety devices at a worksite and claim plaintiff had an obligation to use it. This decision sets forth an important link in that the worker must actually have been told to use the device or otherwise aware of his obligation to use it.

Finally, it was alleged that the plaintiff was the sole proximate cause of his accident because he had a weak grip on the saw at the time he fell as a result of a prior injury and had prematurely returned to work. The Court summarily proclaimed that this at most rose to the level of contributory negligence which, as is widely known, is not a defense to a 240(1) claim.

Leave a Reply