Huge Labor Law 240 Case From Court Of Appeals


On February 11, 2010, the Court of Appeals decided Gallagher v. The New York Post, 2010 NY Slip Op 01014 which substantially strengthened Labor Law 240 for victims of construction accidents.

The Court of Appeals in Gallagher limited the prior holdings in Montgomery v. Federal Express, 4 N.Y.3d 805 and Robinson v. East Med. Ctr., 5 N.Y.3d 550 to factual circumstances where the defendant has submitted admissible facts to demonstrate that: (1) adequate safety were readily available; (2) plaintiff knew the location of the safety devices; (3) plaintiff knew he was expected to use the devices; and (4) plaintiff, for no good reason, chose not to use the device.

The mere allegation by an “after the fact witness” that there were adequate safety devices somewhere on the job site is insufficient to establish a recalcitrant worker or sole proximate cause defense to a Labor Law section 240 claim. The Court of Appeals held that “[t]here is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them…The evidence does not raise a question of fact that Gallagher knew of the availability of the safety devices and unreasonably chose not to use them.”

The Court of Appeals significantly strenthened the protection of Labor Law 240 in this decision.