The New York Court of Appeals just yesterday heard oral arguments in Gallagher v. New York Post, which concerns an issue of the sole proximate cause defense within the Labor Law context.  In Gallagher, the plaintiff injured worker fell into an opening in decking floor after the blade of a circular cut-off saw he was using became bound up in steel decking that he was cutting.  The plaintiffs moved for summary judgment on the issue of liability on their Labor Law sec. 240(1) cause of action.

The Appellate Division, First Department Majority held that the trial court properly denied the plaintiffs' motion because material issues of fact existed on whether the worker chose not to use an available safety device.  The Majority held that the evidence proffered in opposition to motion demonstrated more than "[m]ere generic statements of the availability of safety devices."  The Majority hinged this conclusion on the testimony of the worker's employer's assistant project manager, who stated that (1) he had weekly meetings with the safety specialist hired to oversee the construction project in question; (2) the ironworkers were required to use certain safety devices, such as lanyards, cables or harnesses, when working near open areas; (3) the devices were used to prevent injury in case a worker fell through an opening or off an elevated surface; (4) the safety devices were available on the job site the day the worker was injured; and (5) a standing order was in place that all workers operating around any opening in the floor were to be in a harness and tied off.

Justice Catterson, with Justice Moskowtiz joining, dissented in part and concluded that the motion should have been granted because no triable issues of fact existed regarding whether the requisite safety equipment was made available and, if so, whether the injured worker chose not to make use of it.  Justice Catterson observed that no evidence existed in the record that the worker chose not to use an available safety device.  He reasoned that every worker except the worker's employer's assistant project manager testified that no safety devices were provided to the ironworkers.  Justice Catterson pointed out that the assistant project manager's testimony did not state that the worker was told to use certain safety devices and that he declined and that he had "no good reason not to do so."

The Court of Appeals' decision will likely provide more clarification to its holdings in Montgomery v. Federal Express Corp., Cahill v. Triborough Bridge & Tunnel Auth., and Blake v. Neighborhood Hous. Servs. of N.Y. 

New York Civil Law will keep you apprised of the Court's decision.