Case law for years has held that, in a labor law context, a fall from the bed of a flatbed truck is not the type of elevated risk that the scaffold law was designed to protect against. The cases in this context vary.  There are some plaintiffs who fall from the truck itself, and others that fall from material on that flatbed truck. Then, there are those that jump.

In Biscup v. E.W. Howell, the Appellate Division, Second Department, overturned the Nassau County Court’s denial of summary judgment to a contractor seeking to dismiss Labor Law §240(1) claims by a construction worker who was injured when he jumped off the back of a flatbed truck and slipped in mud.  The court unanimously held that Labor Law 240(1) does not apply to these facts.  Quoting the 2005 Court of Appeals case, Toefer v Long Is. R. R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E. 2d 614 (2005) the Second Department stated that summary judgment under Labor Law 240(1) should have been granted because “[a] four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law §240 (1)’s coverage. The Second Department also dismissed all claims under Labor Law §241 (6), due to plaintiff’s failure to properly plead applicable Industrial Code violations.

The Defendant did not have a complete victory, however.  The Appellate Division, Second Department left for trial whether the defendant was negligent under plaintiff’s Labor Law §200 and common law negligence theories and consequently, whether they were entitled contractual indemnification from a third-party defendant.  Plaintiff made claims of an unsafe worksite and the court found questions of fact as to the Defendant’s control of the site and whether they had actual or constructive notice of a dangerous condition.  Since the defendant could not demonstrate that it was free from negligence, the case will proceed.  Knocking out the Labor Law §240 (1) claim, however, allows the plaintiff’s comparative fault to be considered.  While Biscup is light on specifics, one would imagine that the jumping plaintiff warrants serious consideration of comparative fault.

The instant case reminds us that construction accident cases can be three-headed monsters, and each individual claim under the labor law, while there is overlap, challenge the defendants to establish their defenses by treating each one separately to achieve the best result.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .