In the past few years, the New York Court of Appeals has developed a line of case law strengthening the sole proximate cause defense for Labor Law sec. 240(1).  Two cases in particular — Montgomery v. Federal Express Corp. and  Robinson v. E. Med. Ctr. LP — are strong cases for the proposition (very generally stated) that an injured worker can be held as the sole proximate cause of the accident where a enumerated safety device is present on the worksite, the worker knows of the safety device's presence on the worksite, the worker knows to use that safety device for the work, and the accident would not have occurred if the worker had used the safety device.

The Appellate Division, First Department's holding in Cherry v. Time Warner, Corp. now addresses the Court's sole proximate cause case law.   In Cherry, the injured worker fell from a scaffold that only had two sides with guards.  There were scaffolds with guards on all four sides at the worksites, but on different floors.

The Majority concluded that a triable issue of fact existed as to whether the plaintiff's actions were the sole proximate cause of the accident.  Justice McGuire dissented, following the Court of Appeals' holdings.

Irrespective of what you think of the result, the Majority and Dissenting decisions provide an excellent analysis of the issue.