Trial Practice

An Analysis of 'O'Brien v. Port Authority'

, New York Law Journal


In their Trial Practice column, Robert Kelner and Gail Kelner discuss ‘O’Brien v. Port Authority,’ where a divided Court of Appeals stepped into a battle of the experts in a construction site accident case. They conclude this to be a case narrowly limited to its facts and “not a game changer in any way.”

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What's being said

  • Matthew Siegel

    Contrary to the Court’s recent decision in O’Brien-v-Port Authority of NY & NJ, 29 N.Y.3d 27, as well as this Article, absolute liability under Labor Law § 240(1) does not depend on whether a defendant site owner or contractor conformed to a reasonable standard of care – and, hence, on expert proof – regarding whether a “height-related” safety device supplied at plaintiff’s worksite provided proper protection under the statute. There is no exception that the ordinary presence of rain -- or any other foreign substance -- is sufficient to absolve a defendant from absolute liability under the statute, when such substance causes a worker to slip and fall as a result of defendants‘ failure to properly construct, place and/or operate a height-related safety device of the type enumerated under Labor Law 240(1), regardless of whether it is a ladder, scaffold or uncovered temporary exterior staircase! As Zimmer cogently instructs, short of plaintiff having misused or failed to use any safety device such that his own conduct may have been the sole proximate cause of his injuries, Labor Law 240(1) places responsibility to find an appropriate safety device and casts absolute liability squarely on the shoulders of the defendant owner, contractor and their “statutory agents” even when the state of the building art is such that no devices of the type contemplated by the statute have yet been devised to protect workers against the risk of falling from a physically-significant height differential. Hence, any argument by defendants’ expert that the temporary exterior metal staircase upon which plaintiff O’Brien slipped and fell was designed to allow for outdoor use and provided necessary traction in inclement weather, and that no safer devices had yet been devised that could have averted plaintiff’s accident, was insufficient to raise any issue of fact to otherwise preclude plaintiff O‘Brien‘s motion for summary judgment that such device failed to provide adequate protection under the statute. What more need one say?

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