During the last few years, the sole proximate cause defense has developed into a potent weapon for attorneys defending claims brought pursuant to Labor Law §240(1). In determining the applicability of the defense, the courts have grappled with the issue of whether it can be invoked where the plaintiff’s “normal and logical response” should have been to obtain equipment which could have averted his injury. In Cherry v. Time Warner, —AD3d— (1st Dept, Aug. 18, 2009), the Appellate Division, First Department, carefully analyzed the place of the “normal and logical response” in the ever evolving universe of the New York Labor Law and came to the conclusions discussed below.
Labor Law §240(1) provides that:
All contractors and owners and their agents […] in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
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