In James v Alpha Painting & Constr. Co., Inc, the First Department recently adopted a broad interpretation of section 23-8.2(d)(3) of the Industrial Code, which governs “mobile crane travel.”
The case arose from injuries sustained by plaintiffs Darren James and Balthazar Andrade, who were employed by a subcontractor on a project to renovate and repaint the Bronx-Whitestone Bridge. On the date of the accident, they were dismantling a scaffold and loading the materials onto a boom truck – a flatbed truck with a hoist or “boom” affixed to the back. Once they loaded the boom truck, plaintiffs were directed to board the boom truck while it drove the materials to the other side of the bridge. After driving approximately 700 feet, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and throwing the plaintiffs from the truck onto the roadway, causing severe injuries. Plaintiffs commenced a lawsuit against, inter alia, Alpha Painting and Construction Co., Inc. (Alpha), the general contractor on the project, and GPI, the construction manager, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).
The trial court granted defendants’ motion for summary judgment dismissing the complaint. On appeal, the First Department upheld the dismissal of plaintiffs’ common-law negligence and Labor Law §§ 200 and 240(1) claims. First, the Court held that even though the accident occurred 700 feet away from the job site, it occurred while the truck was “in the process of driving away.” Accordingly, it should be considered part of the site of the purposes of the Labor Law. Secondly, the Court upheld the dismissal of plaintiffs’ Labor Law § 240(1) claim, as the plaintiffs’ injuries were not caused by an elevation-related risk, but by the motion of the truck after the boom struck the overhead road sign. Lastly, the Court held that Alpha put forth prima facie evidence that it only had general supervisory control over the plaintiffs’ work, which the trial court correctly held was insufficient to establish liability under Labor Law § 200 or the common-law.
In terms of plaintiffs’ Labor Law section 241(6) claim, the Court found that issues of fact warranted reversal of the trial court. Specifically, the Court analyzed section 23-8.2(d)(3) of the Industrial Code, which pertained to “mobile crane travel.” Section 23-8.2(d)(3) provided that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab.” The Court recognized that in the case at bar, plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. However, the Court looked to cases from other Appellate Divisions that held section 23-8.2(d)(3) was violated when a mobile crane has “the boom so high that it may bounce back over the cab.” Accordingly, the Court remanded plaintiffs’ Labor Law section 241(6) claim to the trial court, so that a jury could resolve outstanding factual questions related to the operation of the worksite and which defendant had control over the injury producing work.
Despite the fact that the First Department upheld the dismissal of most of plaintiffs’ claims, it was clearly reticent to refuse plaintiffs their day in court. Here, the dissenting justices noted that the majority went to great lengths to apply section 23-8.2(d)(3) of the Industrial Code – which dealt exclusively with mobiles cranes – to the case at bar, which dealt with a boom truck. To the dissenters, a mobile crane and a boom truck were clearly distinguishable, so the majority was “unconvincing” in its efforts to find factual issues by relying on a regulation that did not even apply. Overall, the majority opinion clearly demonstrates the high bar movants face when seeking summary judgment. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.