On June 14, 2016, James V. Deegan successfully obtained a defense verdict after a 5 day jury trial and only 3 hours of deliberation in the Supreme Court, Bronx County before Judge Faviola Soto. The case of Schneider v. Isabella City Carting, et al., arose out of a two vehicle collision that occurred on June 14th, 2010, on 138th Street when plaintiff attempted a left turn in front of defendant in order to enter the Major Deegan Expressway. Plaintiff claimed to have had a green turning arrow. Defendant, Adam Hernandez, operating a sanitation truck owned by Isabella City Carting, claimed he had a green light in his favor and that plaintiff jumped the light in front of his garbage truck. The trial was bifurcated. Plaintiff had previously obtained a favorable liability verdict with a 55% finding of liability against defendants. The same jury returned to participate in the damages phase of the trial.

The critical issues at trial were whether plaintiff’s neck fusion surgery, nerve damage limiting use of his arm, and the additional injuries to his shoulder and back constituted a serious injury pursuant to the New York Insurance law. The jury had to answer whether plaintiff sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system and if so, the extent of any past and future damages to be awarded plaintiff while also considering the need for future surgeries and treatment.

During closing arguments, plaintiff requested $6.3 Million; $3 Million of which was for past pain and suffering, $3 Million for future pain and suffering, and $300,000.00 for future surgery and treatment. The jury returned a defense verdict determining that plaintiff did not sustain either a consequential permanent limitation or a significant limitation of a body part or function stemming from the accident.

Plaintiff alleged the accident caused injury to his neck, arm, shoulder and back, including a traumatic disc herniation to the C5-C6 disc with spinal compression and confirmed radiculopathy down his right shoulder and arm and into his right hand, with nerve damage stemming from the compression on the spinal cord. These injuries, plaintiff offered, resulted in a discectomy and fusion surgery with hardware installed, with limited and restricted use of his right non-dominate arm. Plaintiff offered the expert testimony of his initial orthopedic surgeon and his spine surgeon, both of whom testified that the accident caused the traumatic herniation that required fusion surgery and nerve damage resulting in limited use of his right arm.

Mr. Deegan convinced the jury that plaintiff suffered from a pre-existing degenerative spinal condition unrelated to the accident and that the accident did not cause a traumatic rupture of the C5-C6 disc. Mr. Deegan conceded to the jury that plaintiff sustained a whiplash injury but argued such injury resolved over 4-6 months time. Mr. Deegan also proved that plaintiff’s activities post accident were basically unchanged from his pre-accident activities.

Defendants relied upon expert testimony of an orthopedist, neurologist, and radiologist, all of whom opined that plaintiff did not suffer a herniated disc from the accident, merely soft tissue injuries that fully resolved within months of the accident, and that the fusion surgery and nerve damage was a result of the naturally progressing degenerative disc disease rather than a trauma from the accident.

GVK Partner Daniel Mevorach and Associate Thomas Vu obtained summary judgment dismissing Plaintiff’s Complaint, in its entirety, on behalf of our client Consolidated Edison Company of New York (“Con Ed”) in a very high exposure construction accident matter pending trial before Justice Carmen Velasquez in the Supreme Court, Queens County.

The Plaintiff was a 32 year-old union excavator operator employed at a project for reconstruction of a timber bulkhead retaining wall at the Con Ed Power Plant in Astoria, New York. Plaintiff was operating the excavator to remove timber cribbing from the shoreline. When he drove the excavator along the shoreline on some of the wet timbers facing perpendicular to the shore line, the excavator lost traction and slid into the water, with Plaintiff narrowly avoiding drowning while trapped inside the submerging excavator. As a result of his incident, Plaintiff alleged orthopedic injuries to his back and neck, and more significantly, post-traumatic stress disorder (“PTSD”) due to his near death experience. Despite his young age and salary, Plaintiff had not returned to work due to the ensuing psychological trauma from his incident.

Plaintiff’s counsel issued a settlement demand of $12 million based upon findings from a team of expert witnesses comprising a psychologist, psychiatrist, neurologist, economist, vocational rehabilitation expert, and site safety consultant. Plaintiff’s economist was prepared to present extensive evidence that due to Plaintiff’s young age, high-paying occupation, and work-life expectancy, his total economic losses were in the range of $11.5 million – $17 million.

We expediently marshaled an evidentiary record, including depositions of non-parties, to argue that Plaintiff’s incident was wholly attributed to his negligently operating the excavator over the timber pile that he excavated but failed to clear, and that Con Ed was not negligent and did not violate Labor Law sections §200, §240(1) or §241(6) in causing Plaintiff’s incident. In granting summary judgment to our client, the Court agreed with our position that Plaintiff’s incident did not implicate §240(1) since his incident did not involve any elevation-related hazard that any protective device under the provision would have prevented. Of further significance, the Court agreed with our arguments in defense of Plaintiff’s numerous §241(6) and industrial code allegations, which included those relating to the meaning of “trenching and area-type excavation” activity, whether Plaintiff was properly supervised in the performance of his task, whether Con Ed permitted his operation of the machine upon unstable terrain that would cause dangerous tilting, and the adequacy and power capacity of the excavator that Plaintiff was hired to operate.

After consulting with our client, we found an expert with years of experience in the field of power equipment, who helped us to clarify for the Court the technical and somewhat obscure provisions of the Industrial Code, and worked closely with him to develop the arguments the Court ultimately adopted in dismissing every code violation cited by Plaintiff.

This case goes to show that with attention to the evidentiary record, and close assistance of a qualified expert, Labor Law 241 (6) cases can be defensible.

Following a six day jury trial and only four hours of deliberation, Matthew Vitucci obtained a defense verdict for our client, A. Anastasio & Sons Trucking and Jeremy Horace Jupiter, in the matter of Manlapig v. A. Anastasio & Sons Trucking, et al., tried in the United States District Court for the Southern District of New York before Judge Lorna G. Schofield.  Plaintiff’s motion for summary judgment on liability had previously been granted so the trial hinged on whether plaintiff sustained a serious injury pursuant to the New York Insurance law and the extent of any damages to be awarded to plaintiff.  In addition to general compensatory damages, this case also involved a claim for punitive damages based on the reckless hiring, retention and training of Jeremy Jupiter as a truck driver.

Plaintiff’s pre-trial settlement demand was $900,000 and during trial plaintiff increased his settlement demand to $2.5 million.  During closing arguments, plaintiff requested $10.6 million dollars of which $6 million was for punitive damages and $4.6 million was for compensatory damages.  The jury returned a full defense verdict determining that plaintiff did not sustain a serious injury and did not award plaintiff any compensatory or punitive damages.

The case arose from an accident that occurred in 2012 on the upper level of the George Washington Bridge.  Our driver had just picked up an empty shipping container from a port in New Jersey and was transporting it on a flatbed trailer to a facility in Connecticut.  As our driver drove across the George Washington Bridge, the top of the shipping container struck the underside of an overpass causing the shipping container to become dislodged and fall from the flatbed trailer onto the roadway.  Plaintiff was operating a Freightliner box truck behind our driver and the front of his truck struck the rear of the shipping container after it fell onto the roadway.

Plaintiff alleged that this accident caused injury to his neck and back including traumatic disc herniations and bulges to his cervical and lumbar spine requiring continuous chiropractic therapy, bilateral laminotomy and a medial facetectomy at the L3-4 and L4-5 levels.  Plaintiff contended that as a result of his injuries he was unable to perform basic household functions such as cooking, cleaning or mowing the lawn.  In addition, plaintiff alleged that A. Anastasio & Sons Trucking was reckless in the hiring, retaining and training of Jeremy Jupiter due to Mr. Jupiter’s driving records, which included numerous traffic violations including a conviction for reckless driving, multiple speeding violations and accidents.  Plaintiffs further alleged that A. Anastasio & Sons was liable for punitive damages for failing to train Mr. Jupiter in the different sizes of containers and explaining to him the differences between standard size containers, which are 8’6” tall and high cube containers, which are 9’6” tall.  On the date of the accident, Mr. Jupiter picked up a high cube container which was too tall to pass over the George Washington Bridge.

Plaintiff offered the expert testimony of the performing spinal surgeon, Dr. Richard Radna, plaintiff’s treating chiropractor, Dr. Gary Cullin and an expert economist, Kristen K. Kucsma, M.A. Despite the testimony of these experts, Mr. Vitucci was able to persuade the jury that all of plaintiff’s injuries were the result of a pre-existing degenerative condition and that the only injury plaintiff sustained in the accident with our driver was a spinal sprain, which does not meet the level of a serious injury.

Defendants relied upon the testimony of neurosurgeon Dr. Douglas Cohen, orthopedic surgeon Dr. Gregory Montalbano and biomechanical engineer Dr. Mariusz Ziejewski.  Dr. Ziejewski explained that the forces involved in the collision between plaintiff’s vehicle and the container were such that there was less than a 1% chance plaintiff sustained anything more than a spinal sprain in the accident and Dr. Cohen and Dr. Montalbano both offered evidence demonstrating that based on their medical evaluations, plaintiff only sustained a spinal sprain in the accident.

Our THEMIS Group is currently arranging their 4th Annual Mock Trial Event in New York City. The Voir Dire, witness examinations, motions in limine, opening statements and closing arguments will be provided by Themis Advocates Group’s highly skilled and experienced litigators. This trial will include a randomly selected live jury as well as real-time jury on-screen analysis of witnesses. There will also be time allotted for jury consultant analysis and strategy discussions. There is no cost to claims professionals to attend. Beverage service and lunch will be provided, and a cocktail hour will follow.

When: Thursday, June 9, 2016 from 9:00am to 4:30pm

Where: Conrad Hotel, 102 North End Avenue, New York, NY 10282

CE/CLE: Continuing Education credit will be provided for both attorneys and adjusters. Credit details and agenda will be provided closer to the program.

Hotel Accommodations: A limited block of $469/night rooms is being held at Conrad Hotel New York. Please register early, as the hotel tends to sell out. To book your room, call Conrad Hotel at (888) 370-1936 and ask for the Themis Advocates Group Rate.

Register: Please e-mail rsvp@themisadvocatesgroup.com.

Questions: Please e-mail Alida Verdino averdino@gvlaw.com.

Jury Consulting and Electronic Jury Monitoring Services provided by: Magna Legal Services

In a matter tried before Justice Barbara Jaffe in Supreme Court, New York County, GVK Partners James Deegan and Daniel Mevorach obtained a unanimous defense verdict on behalf of our client React Industries, Inc. (“React”)

Prior to trial, general contractor Structure Tone, Inc. settled for $3.625 million with the Plaintiff, who had obtained summary judgment against them under Labor Law 240(1).

The Plaintiff was a steamfitter who fell from a ladder while moving a pipe in a high ceiling under the direction of Structure Tone’s superintendent. The ladder collapsed, causing him serious and permanent injuries and ending his career as a steamfitter. At trial Structure Tone sought to recover against various subcontractors, including our client React, alleging it was entitled to contractual indemnification.

Structure Tone relied on a Blanket Insurance/Indemnification Agreement that it required all of its subcontractors to sign periodically. The jury agreed with our argument that the Blanket Agreement was not triggered because our client had no written or oral agreement with Structure Tone to perform work on the jobsite, and instead that our client was on the job site pursuant to an oral arrangement with Structure Tone’s direct contractor, FRP Sheet Metal Contracting Corp.

The contractual arrangements here were a bit unusual. In resolving a prior appeal, the Appellate Division, First Department found questions of fact about whether our client React had a contractual indemnification obligation to Structure Tone. Structure Tone had originally intended to hire our client, React, to manage and retain sub-subcontractors to complete the entire HVAC portion of the work, which is composed of two parts: mechanical work done by steamfitters and ductwork done by sheet metal workers. However, React was barred by the building management company from contracting with Structure Tone because React had a mechanic’s lien on the building. Structure Tone then wrote out purchase orders to sheet metal contractor FRP, one for mechanical work and one for sheet metal work. FRP had an oral “gentleman’s agreement” with React where React would handle the mechanical work. React then subcontracted the actual performance of the mechanical work to Plaintiff’s employer, FL Mechanical. We successfully convinced the jury that under this scenario, React lacked the relationship with Structure Tone necessary for the Blanket Insurance/Indemnification Agreement to apply.

Kenneth S. Merber successfully defends a commercial bus and its driver after a 4 week trial in the Superior Court of New Jersey, Bergen County, Law Division. The case of Juan Pablo Morales Hurtado v. New Service, Inc. and Abel Reinoso involved a 28 year old Hispanic man whose Honda Civic was rear ended by the defendants’ bus in Fort Lee, NJ. Following the accident, the claimant was immediately transported by ambulance to a hospital. He sought continuous treatment for 2 1/2 years and was diagnosed with multiple herniated discs, spondylolysis and spondylolisthesis. Plaintiff’s course of treatment included, chiropractic, orthopedic, neurologic care and pain management. After 5 epidural steroid injections failed to resolve his pain, he underwent multi-level laminectomy, discectomy, decompression and interbody fusion surgical procedures. Thereafter, Mr. Hurtado underwent a long course of physical therapy and rehabilitation. Plaintiff claimed he was permanently injured. Plaintiff’s past medical expenses totaled more than $500,000. His life care expert projected future medical expenses totaling more than $4 million. Mr. Merber convinced the 8 person jury that Plaintiff only suffered minor injuries as a result of the collision and that his spinal conditions were neither caused nor exacerbated by the trauma from the accident. Mr. Merber argued that Morales Hurtado had the surgery to address his long standing conditions and the possibility of future instability despite the fact that there was no evidence Plaintiff ever complained of back pain or sought any treatment for same prior to the accident at issue. Although defendants had offered $750,000 prior to trial, on January 6, 2016, the jury returned a verdict of only $50,000 for pain & suffering and $71,600 for medical expenses. These amounts were reduced by 20% for plaintiffs comparative negligence.

New York defendants scored a significant procedural victory recently, when the Appellate Division ruled that personal injury plaintiffs cannot video record independent medical examinations (“IME’s”) without prior court approval. The unanimous decision by a four-judge panel halts a growing trend of plaintiffs recording IME’s for expert impeachment, but equally as important, it highlights the hurdles that defendants oftentimes face at the trial court level.

In the damages trial of Bermejo v. New York City Health and Hospital Corp., 2015 WL 7270707 (2d Dep’t. 2015), the defense called a well-known orthopedist, Dr. Michael Katz, to testify on the issue of the plaintiff’s injuries. Throughout Dr. Katz’s testimony, Queens Supreme Court Justice Duane Hart exhibited a shocking amount of defense bias, which would form a basis for the Appellate Division’s eventual rebuke of the lower court. Justice Hart repeatedly placed his personal suspicions about Dr. Katz’s credibility ahead of evidence that was before the jury, in an obvious attempt to undermine the expert’s credibility and take down the IME industry in general.

Justice Hart eventually declared a mistrial on the issue of plaintiff’s surreptitious and undisclosed video recording of Dr. Katz’s IME, but not before he unequivocally and repeatedly accused the medical expert of lying under oath, inexplicably fixating on Dr. Katz’s seven-figure salary and popularity among the defense bar. In what amounted to a professional assassination, Justice Hart threatened criminal prosecution and professional censure of the doctor, calling on insurance companies to stop hiring him for IME work. Outrageously, the judge even threatened to impose the maximum amount of sanctions on defense counsel unless they stated, on the record, that their expert had lied under oath.

On November 18, 2015, the New York State Supreme Court Appellate Division, Second Department, ruled that plaintiffs have no legal right to video record IME’s and that any requests must be decided by the trial court on a case-by-case basis. It further ruled that video recordings are only permissible when plaintiffs can prove “special and unusual circumstances,” and that they must be disclosed before trial. Moreover, the Appellate Division excoriated Justice Hart for committing an “avalanche of errors” during trial and for his improper and oftentimes outrageous conduct toward the defense. It accused the judge of undertaking “extraordinary efforts” to end Dr. Katz’s medical career and found that the judge’s unfounded accusations “thoroughly intimidated” Dr. Katz so as to prevent him from testifying at any re-trial of the matter.

Given the requirement that defendants are to disclose video surveillance of plaintiffs before trial (or even sometimes before depositions), Bermejo is a welcome ruling in the plaintiff-friendly confines of New York City’s trial courts. The Second Department has stated that plaintiffs must play by the same rules as their counterparts, and in doing so, it has taken a small step to a more even playing field.

On January 10, 2012, New York’s highest court, the Court of Appeals, decided in Toledo v. Christo that the proper method for calculating preverdict interest on future wrongful death damages in personal injury cases is to discount damages to the date of death and award interest on that amount from the date of death to the date of the verdict. The court’s decision in calculating interest from the date of death, rather than verdict, confirms the rule that prejudgment interest in a wrongful death case is an “element” or “part” of the damages and rejects the defense argument that awarding interest on future damages that have yet to be realized is an unfair windfall for the plaintiff.

In Toledo, the plaintiff was killed in a construction accident on September 21, 2002, and the decedent’s estate brought a negligence and wrongful death action against the defendant church. On December 3, 2007, the jury rendered an award in favor of the plaintiff that included future damages in the amount of $3,562,000. The plaintiff submitted a proposed judgment to the trial court pursuant to the New York statute that discounted the jury’s award of future damages to the date of verdict and then further to the date of the decedent’s death, arriving at a value of $2,487,465. The interest was then calculated on that discounted rate at the statutory interest rate of 9% from the date of death to the date of verdict, arriving at a total future damages award of $4,295,595.

The Appellate Division, First Department, initially reversed, holding that interest on future damages should only be calculated from the date of the verdict. Upon reargument, the First Department vacated its decision and held “whereas here, the award of future damages was discounted by the court to the date of liability, which is the date of death, the award of interest from that date to the date of judgment was proper.” The Court of Appeals granted the defendant leave to appeal and affirmed the First Department’s decision.

The Court of Appeals’ reasoning in holding that preverdict interest on future damages calculated from the date of death does not constitute a windfall for the plaintiff is premised upon the theory that damages should have been paid at the time the loss was suffered, which is the date of death. Thus, the court confirmed that future damages are owed as of the date of death, and such award should include interest calculated from the date of death as well. In essence, what the court’s decision means for litigants in wrongful death cases is that prejudgment interest is a part of the damages, running from the date of death, and not the verdict date.

As a result of the court’s holding in Toledo, defendants should heed that the already large awards upheld in wrongful death cases will be significantly increased by a statutory interest of 9% that is calculated from the date of death to the date of verdict, particularly in light of the fact that these cases take many years to litigate before a jury verdict is rendered.

In a decision earlier this month, the Second Circuit reinstated disparate treatment and retaliation claims filed by a former New York City, Administration for Children’s Services (“ACS”) Director of its Equal Employment Opportunity Office and held that a plaintiff at the pleading stage “does not need substantial evidence of discriminatory intent” but rather “gets the presumption of discriminatory intent.” Littlejohn v. City of New York, No. 14-1395-CV, 2015 WL 4604250 (2d Cir. Aug. 3, 2015). The District Court granted defendants’ 12(b)(6) motion to dismiss in its entirety on the grounds that she failed to adequately plead her discrimination claims. In the opinion, the Second Circuit closely examined the pleading standards for Title VII discrimination claims and clarified that, at the pleadings stage, the plaintiff does not have to show an ultimate prima facie case of discrimination and gets the benefit of a temporary presumption such that the pleadings must be viewed in the light of most favorable to plaintiff. “The plaintiff cannot reasonably be required to allege more facts in the complaint than the plaintiff would need to defendant’s motion for summary judgment made prior to the defendant’s furnishing of a non-discriminatory justification.”

Significantly, the Circuit Court held that a Title VII plaintiff satisfies the FRCP 8(a)(2) notice pleading standard of “plausibility” under the Supreme Court’s Iqbal decision simply by alleging the prima facie elements of her case. In Iqbal, the Supreme Court said that a plaintiff alleging discrimination must plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.662, 697 (2009). Looking to the “quartet of cases” led by McDonnell Douglas v. Green, 411 U.S. 792 (1973) as well as Swierkiewsicz v. Sorema, NA, 534 U.S. 506 (2002) and Ashcroft v. Iqbal, 556 U.S.662 (2009), the Second Circuit held that the Iqbal requirement of “plausibility” applies to Title VII complaints of employment discrimination but does not affect the benefit to plaintiffs of the McDonnell framework for burden-shifting between parties, including the temporary presumption in plaintiff’s favor.

The Circuit Court then considered “…what, in the Title VII context, must be plausibly supported by factual allegations when the plaintiff does not have direct evidence of discriminatory intent at the outset.” The court explained, “absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent. The facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of Title VII litigation. The facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.”

Turning to Littlejohn’s retaliation claim, the Circuit Court rejected the application of a so-called “manager rule” that excludes from “protected activity” any EEO opposition that falls within the employee’s scope of duties. Here, the defendants contends that Littlejohn’s complaints of racial discrimination were not protected actions under §704(a) because it was part of Littlejohn’s job responsibilities to investigate complaints of Title VII violations in her role as Director of the EEO office. Unimpressed with this argument, the Second Circuit held that, “[t]o the extent an employee is required as part of her job duties to report or investigate other employees’ complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)’s…. But if an employee-even one whose job responsibilities involve investigating complaints of discrimination-actively ‘support[s]’ other employees in asserting their Title VII rights or personally ‘complain[s]’ or is ‘critical’ about the ‘discriminatory employment practices’ of her employer, that employee has engaged in a protected activity under § 704(a)’s….”

While the plaintiff will ultimately be required to prove that the employer-defendant engaged in discriminatory or retaliatory conduct, the initial pleadings phase of the case has been notably relaxed for the offended employee-plaintiff. There does seem to be a trend in the legislature and the courts to enlarge the scope of employment practices litigation through stricter regulations, and now greater latitude in this first pleading phase of a case.

The Court of Appeals recently issued three decisions on the so-called Scaffold Law, New York Labor Law 240(1), taking on both of the elements required to impose Scaffold Law liability (that a plaintiff is engaged in a “protected activity” and faced with a “height-related risk”) in the first two cases, and in the third case, addressing the “sole proximate cause” defense. The Court of Appeals continues to take a pragmatic approach to the question of whether a given task is a “protected activity,” focusing on the physical alteration to a building or structure, and may be slightly narrowing the scope of what can be considered an “elevation-related risk,” by emphasizing the requirement that an enumerated safety device would have prevented the accident; and the court remains resistant to the “sole proximate cause” defense.

In Saint v. Syracuse Supply, Inc., 2015 NY Slip Op 02802, the court clarified the application of the “protected activity,” i.e., erection, demolition, repairing, altering, painting, cleaning or pointing a building or structure, analysis to billboard construction. Although the Court of Appeals has previously held that changing the vinyl advertisement on the face of a billboard does not constitute a “protected activity,” because there is no change to the structure of the billboard, in Saint, the court held that because the installation involved enlargement of the billboard by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails, the work did involve a physical alteration of the structure of the billboard. Since the work involved a physical alteration to the structure of the billboard, the court concluded that plaintiff was engaged in a “protected activity.” The lesson here is that the court will look to the physical requirements of the project, rather than relying on a categorical approach in determining whether the plaintiff is engaged in a “protected activity.”

In Nicometi v. Vineyards of Fredonia, LLC, 2015 NY Slip Op 02801, the court analyzed whether a worker who slipped on a patch of ice while using stilts to install insulation in a ceiling was subjected to an “elevation-related risk.” The majority refused to distinguish an earlier decision refusing to apply the Scaffold Law to an accident involving stilts, Melber v. 6333 Main St., 91 NY2d 759 [1998], and held that because stilts are not an enumerated safety device, the accident did not implicate the Scaffold Law. The court’s decision may indicate that the court is limiting the scope of “elevation-related” risks to accidents that could have been directly prevented by an enumerated safety device, such as a scaffold or ladder.

In Barreto v. Metropolitan Tr. Auth., 2015 NY Slip Op 03875, the plaintiff stepped into an uncovered manhole, being fully aware that the manhole cover had been removed. In determining that the “sole proximate cause” defense should have been dismissed as a matter of law, the majority focused on three potential causes other than the plaintiff’s negligence that contributed to the accident: a missing guard rail system that should have been installed around three sides of the open manhole, insufficient lighting, and the fact that the manhole cover was too heavy for plaintiff to have put it in place himself. The dissent focused on the fact that the accident allegedly occurred because plaintiff and his co-workers disregarded a supervisor’s instruction to cover the manhole before removing the lighting and the guardrails. The court’s decision here indicates the continuing difficulty in prevailing on the “sole proximate cause” defense.

While none of these Court of Appeals decisions alters the landscape in Scaffold Law litigation, they confirm the longstanding position of the Court of Appeals on the very limited scope of the “sole proximate cause” defense, and highlight the fact-intensive nature of the application of the Scaffold Law. If we were reading tea leaves from the Nicometi decision, we might view it as presaging a slight contraction of the scope of what is considered an “elevation-related” risk.