Week of July 23-29

In James v. Alpha Painting & Constr. Co., Inc. decided on July 18, 2017, the Appellate Division First Department reached an unusual Labor Law decision, with one justice (Tom) dissenting.

The court affirmed the dismissal of a Labor Law 240(1) claim as well as Labor Law 200, but reinstated a 241(6) claim, and remanded for further proceedings.  Plaintiffs Darren James and Balthazar Andrade were working on a project to renovate and repaint the Bronx-Whitestone Bridge.  Plaintiffs were dismantling a scaffold and loading the materials onto a boom truck for transport to the other side of the bridge. Soon after the truck took off, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and the sign and gantry to fall onto the bridge. Plaintiffs were thrown from the truck onto the roadway, causing severe injuries.

“According to the Occupational Safety and Health Administration (OSHA) investigative report, the boom truck traveled approximately 700 feet with the boom ‘raise[d] up about 60 degree[s],’ when the boom struck the overhead road sign and supporting structure, causing the sign to crash down on all lanes and injure plaintiffs. OSHA cited defendants for driving the boom truck ‘with extended boom’ in violation of then existent 29 CFR 1926.550(a)(1), and having employees operate the boom truck ‘without training in the safe operation of the crane,’ in violation of 29 CFR 1926.21(b)(2).”

The Appellate Division upheld the dismissal of the section 240(1) claim, on the ground that “Plaintiffs were not faced with the type of elevation-related hazard contemplated by Labor Law § 240(1) (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Plaintiffs' fall was not caused by an elevation-related risk, but by the motion of the truck after the boom struck the overhead road sign and gantry (see Dilluvio v City [*3]of New York, 264 AD2d 115, 119 [1st Dept 2000] [section 240(1) inapplicable where the plaintiff fell off the back of a truck while being driven to the location on the roadway where he would place cones as part of lane closure process], affd 95 NY2d 928 [2000]). Further, the gantry was "not a material being hoisted or a load that required securing" within the meaning of the statute] (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

Since we are always looking for ways to exclude a claim from the scope of Labor Law 240(1), if you have any similar facts in a future case, you may be able to use this decision in support of an argument that the statute does not apply.