top of page


Tailgating Plaintiff Loses Labor Law Claims (NY)

January 6, 2017

Share to:

<p style="text-align: justify;">New York Labor Law § 240(1) protects laborers from certain gravity–related risks in connection with the in the erection, demolition, repairing, or altering, of a building or structure. The statutory scheme imposes strict liability on all contractors and owners who fail to provide adequate protection from these gravity-related risks.</p>
<p style="text-align: justify;">In <a href=""><em>Eddy v. John Hummel Custom Builders Inc.,</em></a>the plaintiff was injured when he fell off the back of a flatbed truck and was struck by a 100-lb piece of iron grate. Plaintiff and his coworker had loaded heavy construction material, including the iron grate, onto the back of a pickup truck to transport it across the construction site. The men placed the cast iron grate on the open tailgate of the truck because the remainder of the truck bed was full. As they were only traveling a short distance, they did not secure any of the materials that they placed onto the truck. The truck bed did not have any seat or platform to sit. Plaintiff’s co-worker advised him to sit in the front passenger seat because he thought it was unsafe for him to ride in the back of the truck. But rather than taking this advice, the plaintiff decided not only to ride in the back of the truck, but to sit on top of the cast iron grate, which was lying on the truck’s open tailgate, with his feet dangling over the edge of the tailgate. When his coworker began driving, plaintiff fell to the ground, and the cast iron grate fell onto the plaintiff, causing him to sustain injuries.</p>
<p style="text-align: justify;">Plaintiff sued alleging violations under §240(1) and § 241(6) of the Labor Law. The general contractor moved for summary judgment on all claims, claiming that §240(1) and §241(60 were inapplicable to plaintiff’s injuries. The trial court denied the motion, and the general contractor filed an appeal to the Second Department. Citing case law holding that workers who fell from the back of a pickup truck, or who were injured by objects being unloaded from a flatbed truck while standing on the ground next to the truck are not protected by § 240(1).  The Second Department determined that the plaintiff’s accident did not arise out of an elevation-related risk and further held that the plaintiff’s decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries and the decision was reversed in favor of the defendant.</p>
<p style="text-align: justify;">Thanks to Jorgelina Foglietta for her contribution to this post and please write to <a href="mailto:">Mike Bono </a>if you would like more information.</p>

Headshot of Staff Member


bottom of page