Brian J. Shoot 'O'Brien' Revisited, and Uncertainty Concerning the 'Sole Proximate Cause' Defense
In his Construction Accident Litigation column, Brian J. Shoot revisits a 2017 decision that resulted in two immediate and almost polar opposite reactions from the bar, and examines how that holding has factored into litigation in the past three years. He also reviews two recent and contradictory rulings from the Fourth Department concerning the "sole proximate cause" defense.
November 05, 2020 at 12:30 PM
14 minute read
The Court of Appeals' 4 to 3 ruling in O'Brien v. Port Auth. of New York and New Jersey, 29 N.Y.3d 27 (2017) precipitated two immediate and almost polar opposite reactions from the bar. Two defense advocates soon after penned an article stating that O'Brien "increases the ease with which summary judgment may be defeated" where a plaintiff seeks summary judgment under authority of Labor Law §240. Andrea M. Alonso and Kevin G. Faley, "The Elevation of the Expert," NYLJ May 25, 2017. In their view, O'Brien meant that "[w]hen defendants can offer expert affidavits, the adequacy of a scaffold or ladder will now almost always be a question of fact."
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