New York Construction Accidents- Court of Appeals Limits The “Blame the Victim Defense” By Michael Joseph on February 19, 2010

As a New York construction accident attorney, I have handled hundreds of Labor Law cases for clients injured in construction accidents. Most attorneys who handle construction accidents, have had to deal with the new trend of the Courts blaming the Plaintiff for the accident in Labor Law 240 cases.

Even though Labor Law 240 was intended to make owners of construction sites and general contractors responsible for safe ladders and equipment on construction sites, the New York Courts have been dismissing cases of injured construction workers who did not seek out safety equipment on the construction site. Starting with the Blake decision, the New York Courts have thrown out cases of injured construction workers who were not provided with safe equipment or were provided with inadequate safety devices because the construction worker did not use safe equipment that was somewhere else on the site. This absurd application of the law ignores the realities of New York construction sites. The Courts have even thrown out cases where equipment was on site, but belonged to another contractor.

The New York courts have held that there is no Labor Law liability where 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. Most New York construction accident lawyers who represent construction workers with job site injuries believe that the New York courts have seriously misunderstood the law.

However, in a recent decision, the New York Court of Appeals limited the scope of this defense which has cheated injured New York construction workers out of their rightful recoveries. In Gallagher v. New York Post, the defendants tried to have the injured construction worker’s case dismissed because the project manager testified that safety devices were available for use at the project site. The defendants tried to have the injured construction workers case dismissed, even though the construction accident occurred because the injured worker was not provided with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident.

In Gallagher, the Court of Appeals held that since the construction site owner did not prove that the injured construction worker knew where to find the safety devices that they argue were readily available, that he was expected to use them or the the injured construction worker had been told to use such safety devices. The Court of Appeals granted summary judgment to the injured worker (held the construction site owner responsible).

This decision is a significant weapon for New York construction accident attorneys. New York construction accident attorneys now have a more fair playing ground in these motions. The Gallaher decision will limit the ability of defendants to cheat New York construction workers out their recoveries and all New York construction accident attorneys should carefully read this decision.

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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

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