Decisions of Interest
De Rosa v. Bovis Lend Lease LMB, Inc. et al
Appellate Division, First Department, Index No. 307731/08
In a decision dated June 26, 2012, the Appellate Division, First Department reversed, on the law, plaintiff’s motion and granted Malapero & Prisco’s cross-motion dismissing plaintiff’s Labor Law 240(1) cause of action. Plaintiff, the driver of a cementmixing truck, suffered extensive injuries when his shirt became caught in the mixer’s rotating hatch handle causing him to be propelled upward and over the side of the truck.
Malapero & Prisco asserted that, in order to impose liability under Section 240(1), the risks to plaintiff cannot be ordinary construction hazards. Rather, the risks must arise due to “the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured.” Malapero & Prisco argued that, at the time of the occurrence, plaintiff was standing on the fender of his concrete delivery truck, a straight level platform that was 36 inches above the ground. Therefore, this was clearly an accident in which elevation differentials played no significant role, as plaintiff was at the same level as the barrel at the time of the occurrence. Moreover, Malapero & Prisco demonstrated that nowhere in plaintiff’s testimony was it alleged that he was struck by any object that was in the process of being hoisted or secured and that no safety equipment or devices were required for the performance of the concrete delivery work, aside from wearing gloves. Additionally, it was argued that plaintiff did not fall as a result of not being provided with any protective equipment; plaintiff’s actions in his control of the truck and opting to stand on the fender with his back situated one foot from a rotating concrete truck barrel were
the sole proximate cause of his injuries.
The Court concluded that plaintiff was not exposed to an elevation-related risk and his injuries did not directly flow from the application of gravity’s force, as argued by Malapero & Prisco.