New York

With the last few Labor Law decisions from the New York Court of Appeals (read post here and here) acting as a backdrop, I've heard defense attorneys complain that the Court has cut back the sole proximate cause defense in its recent decision Gallagher v. New York Post.  The decision in Gallagher seems less to do about the Court retracting from its prior decisions on this defense and more about the proof that was adduced on summary judgment (see prior post).  

The plaintiff in Gallagher was injured when he fell into an opening decking floor after the blade of a circular cut-off saw he was using became bound up in the decking that he was cutting.  At his deposition, the assistant project manager at the work site testified that "safety harnesses with shock-absorbing lanyards" and "retracting lanyards" were available for use.  He could not say whether any of those safety devices were in the area from which the plaintiff fell.  The assistant project manager also testified that, at the time of the accident, there was a "standing order," issued by the project manager to the project foremen, that the ironworkers should "have a harness on and be tied off".  He could not recall whether these instructions had been given to the ironworkers.

The plaintiff and his wife moved for partial summary judgment on his Labor Law sec. 240(1) claim, pointing to the affidavit of his co-worker who stated that "there were no safety lines, lifelines or stanchions in the work area, and [he and the plaintiff] were not provided with safety belts, harnesses or yo-yos in order to tie off."  The defendant owner relied on the assistant project manager's deposition testimony that safety devices were available for use at the project site; it also relied on the "standing order".

In further support of their motion, the plaintiff adduced an affidavit signed by the injured plaintiff's foreman.  The foreman would have been the person responsible for relaying safety instructions to the ironworkers.  The foreman stated that the injured plaintiff had not been provide with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident."

The Court granted the plaintiffs' partial summary judgment motion, holding that the owner's evidence did not raise a question of fact that the injured plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.  The Court pointed out that there was no evidence that the injured plaintiff knew where to find the safety devices that the owner argued was available.  

The Court also pointed out that there was no evidence that the injured plaintiff was expected to use the safety devices.  The owner failed to proffer evidence demonstrating that the injured plaintiff had been told to use the safety devices.  Although the owner pointed to the "standing order," there was no evidence that anyone conveyed the order to the ironworkers.  The Court also relied on the foreman's affidavit to demonstrate the injured plaintiff had not been provided with the requisite safety devices.  The Court noted that the foreman's affidavit was consistent with the conclusion that the injured plaintiff was ignorant of the availability of safety devices or with his knowledge thereof.

The Court distinguished its prior holdings in Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP.  The Court noted that both cases stand for the same proposition: Liability under sec. 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 the accident.  The Court concluded that the Gallagher facts did not present such a case.

Gallagher defines the outer boundaries of the prior sole proximate cause cases; the decision appears less a chipping away of the sole proximate cause defense and more an explanation of what proof a defendant must proffer to apply the defense successfully.