First Department Issues Monthly Reminder that “Sole” Means “One”

If you’re wondering why these musings are suspiciously light on defendants emerging victorious on a “sole proximate cause” argument, it’s because those decisions are few and far between.  The First Department reminds us why, in a recent decision involving a “sole proximate cause” argument by defendants.

In Devlin v. AECOM, 2024 NY Slip Op 00673 (1st Dep’t 2024), the First Department modified a Supreme Court, New York County order that denied plaintiffs’ motions for partial summary judgment on their Labor Law §§ 240(1) and 241(6) claims against defendants.  In its decision, the First Department found that plaintiffs’ motion as to their Labor Law § 240(1) claim should have been granted. 

Plaintiff alleged that he fell through an insufficiently guarded opening in the floor of a worksite when unsecured plywood covering the hole shifted as he walked over it.  The opening itself was only secured by the plywood covering, and had no railings or affixed barricades.  The First Department rejected the defendants’ contentions that plaintiff was the sole proximate cause of the subject incident, as there was an accompanying statutory violation via the unguarded opening, which constituted an elevation-related risk. 


In support of their argument, defendants contended that plaintiff was lifting the subject plywood at the time of the accident, implying that he intentionally removed the plywood himself.  Defendants also argued that plaintiff should not have been working in that area at the time of the subject incident.  The First Department found these arguments unavailing, and ultimately irrelevant, as they would at most constitute comparative negligence, which is not a defense to a Labor Law § 240(1) claim. 

The First Department upheld a portion of the lower Court’s decision, which dismissed the Complaint against the demolition contractor that created the subject unguarded opening in the floor, as the demolition contractor had not been on site for weeks prior to the subject incident, and cannot be held liable merely because it created the opening, which was the very thing its contract obligated it to do. 

Again, if there is a determination that there has been a violation of the statute, by definition, plaintiff’s conduct cannot be the sole proximate cause of the subject incident, rendering any “sole proximate cause” argument inert.  The “sole” in the “sole proximate cause” defense means “one and only” and if there are multiple causes for the accident, the sole proximate cause defense fails.

The Devlin decision can be found here.

For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved.  This article may not be reprinted without the express written permission of McCormick & Priore, P.C.