Eddy v. John Hummel Custom Builders, Inc.

• Decision Date: 21 December 2016
• Citation: 2016 N.Y. Slip Op. 08502,43 N.Y.S.3d 507,147 A.D.3d 16
• Parties: Mark EDDY, respondent, v. JOHN HUMMEL CUSTOM BUILDERS, INC., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 16

43 N.Y.S.3d 507

2016 N.Y. Slip Op. 08502

Mark EDDY, respondent,

v.JOHN HUMMEL CUSTOM BUILDERS, INC., appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 21, 2016.

Baxter Smith & Shapiro, P.C., Hicksville, NY (Dennis S. Heffernan of counsel), for appellant.

Rappaport Glass Levine & Zullo, LLP, Hauppauge, NY (Michael S. Levine, Anne Marie Caradonna, and Michael Glass of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

DICKERSON, J.

Introduction

In Dilluvio v. City of New York , 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138, the Court of Appeals held that a worker who fell from the back of a pickup truck in which he was riding was not protected by Labor Law § 240(1) because, as a matter of law, the accident did not result from an elevation-related risk. On this appeal, we determine that the same conclusion should result when a worker who falls from the back of a moving pickup truck is injured by an object that also falls from the truck. Moreover, we also determine that under the circumstances of this case, the plaintiff's decision to ride in the back of the truck, while sitting on top of a cast iron grate that was lying on the truck's open tailgate, was, as a matter of law, the sole proximate cause of the accident.

Factual and Procedural Background

The facts in this case are undisputed. On October 2, 2007, the plaintiff and his coworker Mark J. DiSunno manually loaded a number of heavy pieces of construction material onto the back of a pickup truck in order to transport the materials from one location at a construction site to another. One of the items loaded onto the truck was a cast iron grate, weighing approximately 100 pounds. The plaintiff and DiSunno placed this cast iron grate on the open tailgate of the truck because the remainder of the bed of the truck was full. According to DiSunno, because they were only traveling a short distance, he and the plaintiff did not secure any of the materials that they placed onto the truck with ropes, bungee cords, ratchets, or other similar devices. The bed of the truck was not equipped with any sort of seat or platform that was made for someone to sit on.

After the plaintiff and DiSunno loaded the truck, they intended for DiSunno to drive it approximately 100 or 200 feet in order to pick up a concrete extension. DiSunno advised the plaintiff to sit in the front passenger seat of the truck during this drive because DiSunno did not think it was safe for the plaintiff to ride in the back of the truck with all of the unsecured materials. However, noting that they were only traveling a short distance, the plaintiff decided instead to sit on top of the cast iron grate that was lying on the open tailgate. As the plaintiff sat in this position, his feet hung over the edge of the tailgate, which was three feet above the ground. As DiSunno began to drive the truck, the plaintiff fell to the ground, and the cast iron grate fell onto the plaintiff, causing the plaintiff to sustain injuries.

The plaintiff subsequently commenced this action against John Hummel Custom Builders, Inc. (hereinafter Hummel), the general contractor on the construction site, and David and Pamela Berkman (hereinafter together the Berkmans), the owners of the site, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The action was later discontinued insofar as it was asserted against the Berkmans. After depositions had been conducted, Hummel moved for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-moved, inter alia, for summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Hummel. As relevant to this appeal, in the order appealed from, the Supreme Court denied those branches of Hummel's motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against it, and granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it. In support of its determination that a violation of Labor Law § 240(1) had occurred, 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 object, to wit, the iron grate, required securing for the purposes of undertaking and posed a foreseeable risk of tumbling over the edge of the truck due to an elevation differential.

Labor Law § 240(1)

Labor Law § 240(1) requires all contractors engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building" to "furnish or erect ... scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person" employed in the performance of such labor. The statute " ‘imposes absolute liability where the failure to provide [proper] protection is a proximate cause of a worker's injury’ " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662, 985 N.Y.S.2d 416, 8 N.E.3d 791 ).

Elevation–Related Risk

"[I]t is settled that ‘the extraordinary protections of [Labor Law § 240(1) ] in the first instance apply only to a narrow class of dangers' " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 96–97, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Melber v. 6333 Main St., 91 N.Y.2d 759, 762, 676 N.Y.S.2d 104, 698 N.E.2d 933 ). "More specifically, Labor Law § 240(1) relates only to ‘special hazards' presenting ‘elevation-related risk[s]’ " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ).

"[T]he protections of Labor Law § 240(1) ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). " ‘The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances ... that the Legislature has seen fit to give the worker the exceptional protection that section 240(1) provides' " (Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ). "Liability may, therefore, be imposed under the statute only where the ‘plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d at 97, 7 N.Y.S.3d 263, 30 N.E.3d 154, quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 ).

The Court of Appeals and this Court 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, 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 (see Toefer v. Long Is. R.R., 4 N.Y.3d at 407–409, 795 N.Y.S.2d 511, 828 N.E.2d 614 ; Dilluvio v. City of New York, 95 N.Y.2d at 929, 721 N.Y.S.2d 603, 744 N.E.2d 138 ; Biscup v. E.W. Howell, Co., Inc., 131 A.D.3d 996, 998, 16 N.Y.S.3d 266 ; Lavore v. Kir Munsey Park 020, LLC, 40 A.D.3d 711, 712, 835 N.Y.S.2d 708 ; Hughes v. County of Nassau, 286 A.D.2d 476, 476–477, 729 N.Y.S.2d 535 ; see also Bond v. York Hunter Constr., 95 N.Y.2d 883, 884–885, 715 N.Y.S.2d 209, 738 N.E.2d 356 [involving a fall from a demolition vehicle] ). In two of these cases, including the Court of Appeals case of Dilluvio v. City of New York, 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 (see Hughes v. County of Nassau, 286 A.D.2d at 476–477, 729 N.Y.S.2d 535 ; Dilluvio v. City of New York, 264 A.D.2d 115, 116–117, 119, 704 N.Y.S.2d 550, affd. 95 N.Y.2d 928, 721 N.Y.S.2d 603, 744 N.E.2d 138 ). In addition, this Court has also 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 not entitled to recover pursuant to Labor Law § 240(1) simply because there was a difference in elevation between the ground and the truck bed (see Cabezas v. Consolidated Edison, 296 A.D.2d 522, 522–523, 745 N.Y.S.2d 210 ; Jacome v. State of New York, 266 A.D.2d 345, 345–347, 698 N.Y.S.2d 320 ; see also Bartley v. Accu–Glo Elec. Corp., 272 A.D.2d 352, 352–353, 708 N.Y.S.2d 127 ).

Here, the plaintiff contends that the elevation differential cannot be viewed as de minimis given the fact that the grate that fell onto him weighed approximately 100 pounds and...