Second Department Finds That Worker's Fall From Open Tailgate of Moving Pickup Truck, and His Subsequently Being Struck by A Falling Object, Does Not Trigger Liability Under Labor Law § 240(1)

In Eddy v. John Hummel Custom Bldrs., Inc., the plaintiff had loaded heavy construction material into the back of a pickup truck in order to transport the materials at a construction site. One such item was a cast iron grate weighing approximately 100 pounds. The plaintiff and a co-worker placed the grate on the open tailgate of the truck. The materials were not secured with ropes, bungee cords, ratchets, or other similar devices and the bed of the truck was not equipped with a seat or platform for someone to sit on.

The plaintiff’s co-worker, DiSunno advised the plaintiff to sit in the front passenger seat because DiSunno did not think it was safe for the plaintiff to ride in the back of the truck. The plaintiff decided instead to sit on top of the grate that was lying on the open tailgate. In this position, the plaintiff's feet hung over the edge of the tailgate. As DiSunno began to drive the truck, the plaintiff fell and the grate toppled off the tailgate, striking the plaintiff causing his injuries.

The plaintiff commenced this action against the general contractor and owners of the site, alleging, in part, violations of Labor Law §§ 200, 240(1), and 241(6). The general contractor moved for summary judgment and the plaintiff cross-moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1). The Supreme Court denied the general contractor's motion and granted the plaintiff's cross motion. The court reasoned that although the statute did not typically apply to injuries caused by materials that fall from a minuscule height during the loading or unloading process, the statute applied in this case because the falling grate required securing for the purposes of the work and posed a foreseeable risk of falling from the truck due to an elevation differential.

In reversing the lower court and granting the general contractor’s motion to dismiss the plaintiff’s section 240(1) claim, the Court observed that the Court of Appeals and the Second Department have repeatedly held that “because the distance between the back of a pickup or flatbed truck and the ground is so small, the risk of a worker falling off the back of a pickup or flatbed truck is, as a matter of law, is not an extraordinary elevation-related risk protected by Labor Law § 240(1), but rather, one of the usual and ordinary dangers of a construction site.” In two such cases, including Dilluvio v City of New York (95 NY2d 928 [2000]) the plaintiff had injured himself as a result of falling from a truck that was moving, and the courts held that “the danger to the plaintiff was referable to the movement of the truck and not height.” 

The Second Department further observed that it had previously held that because the distance between the back of a flatbed truck and the ground is so small, workers injured by objects being unloaded from a flatbed truck while standing on the ground next to the truck are likewise not entitled to recover pursuant to Labor Law § 240(1).

In the present case, therefore, the Second Department rejected the plaintiff’s contention that the elevation differential between the bed of the pickup and the ground could not be de minimis given the weight of the grate (citing Runner v New York Stock Exch., Inc., 13 NY3d at 602, 605 [involving a reel of wire that weighed "some 800 pounds"]) because even if the plaintiff had been injured while unloading the 100-pound grate his argument would be undercut by the Court of Appeals decision in Rodriguez v Margaret Tietz Ctr. for Nursing Care (84 NY2d 841), where the Court of Appeals held that the plaintiff was exposed to the usual and ordinary dangers of a construction site, rather than a special elevation risk contemplated by Labor Law § 240(1), in placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other coworkers.

The Second Department further rejected plaintiff’s argument on the basis that plaintiff was not engaged in the task of unloading the truck at the time of the accident. The Court observed that the grate had only fallen onto the plaintiff because the plaintiff had fallen off the truck as a result of the movement of the truck. Therefore, the task that the plaintiff was engaged in at the time of the accident was the task of riding in a pickup truck, which, as indicated, does not present an elevation-related risk.

The Second Department also found that, even if Labor Law § 240(1) applied, plaintiff would not be entitled to recovery because, under the circumstances of this case, any failure on the part of the general contractor to provide the plaintiff with protection from riding in the back of the pickup truck was not a proximate cause of the accident. The Court found that the plaintiff’s refusal to heed the advice of DiSunno and sit in the front passenger seat, coupled with the plaintiff’s decision to sit on top of the grate that was lying on the truck's open tailgate, with his feet dangling over the edge of the tailgate, were “so unforeseeable as to break the causal nexus between the alleged failure of [the general contractor] to comply with Labor Law § 240(1) and the plaintiff's injuries, and the plaintiff's decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries."  As such, the Court also dismissed plaintiff's section 241(6) claim.