New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2004-013-022, Claim No. 103845, Motion No. M-66895


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On August 28, 2003, the following papers were read on Claimant's motion for summary judgment:

Notice of Motion, Affirmation and Annexed Exhibits

Affidavit in Opposition with Annexed Exhibits, Supplemental Affidavit and Annexed Exhibits

Filed Papers: Claim; Answer

Claimant, Kevin Jones, was injured on June 25, 1998, at approximately 7:15 p.m., when he fell out of the back of his employer's pickup truck. At the time, Claimant was employed as a laborer by the Keeler Construction Co. (Keeler), which was the general contractor for a highway project on Route 20 in Genesee County. Claimant and another Keeler laborer, Nunzio Bonefede, had just completed picking up the highway cones which were used to divert traffic earlier in the day, when Claimant was hit in the head by an unsecured "stop and go" sign and fell out of the back of the truck.

Claimant moves for summary judgment on the issue of liability pursuant to §241(6) of the Labor Law of the State of New York. Section 241(6) provides that contractors and owners and their agents must provide "reasonable and adequate protection and safety" to those employed in or lawfully frequenting "[a]ll areas in which construction, excavation or demolition work is being performed...." The duty imposed by Section 241(6) is nondelegable, and liability may be imposed on an owner or contractor regardless of the degree of control or supervision it exercised over the construction work being performed (Long v Forest-Fehlhaber, 55 NY2d 154; Russ v State of New York, Ct Cl, March 22, 2002 [Claim No. 97240], Read, J., UID No. 2001-001-529).[1]

Section 241(6) is not self-executing. In order to find liability under this section of the Labor Law, there must be proof of a violation of a sufficiently specific Industrial Code Regulation (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Claimant herein alleges a violation of the Industrial Code, 12 NYCRR 23-9.7(e), which states:
(e) Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.
Regulation 23-9.7(e) simply requires that persons being transported in trucks be provided with a "properly constructed seat or platform" (Vargas v State of New York, 273 AD2d 460). This Industrial Code regulation has been held to set forth a sufficiently specific standard of conduct to support a claim for damages under §241(6) of the Labor Law (Clause v Du Pont De Nemours & Co., 284 AD2d 966; Borowicz v International Paper Co., 245 AD2d 682).

At the time of the accident, Claimant was riding on the tailgate of a pickup truck which was headed back to the central staging area on Route 20 where personal vehicles were parked.[2] There is no real dispute that the pickup truck transporting Claimant and his coworkers was not equipped with a properly constructed seat or platform as required by Section 23-9.7(e). But a violation of a specific provision of the Industrial Code does not establish negligence as a matter of law. Rather, it is only some evidence of negligence to be considered with other relevant evidence (Allen v Cloutier Const. Corp., 44 NY2d 290; Schmeer v County of Monroe, 175 AD2d 633; Russell v Baker Rd. Dev., 278 AD2d 790). In addition, Claimant must prove that the alleged violation of the Industrial Code was a proximate cause of his injuries (Ares v State of New York, 80 NY2d 959).

Moreover, Claimant, as the proponent of summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851). If there is any question as to the existence of a material issue of fact, summary judgment should not be granted (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

Presently, too many material issues exist as to the cause(s) of Claimant's injuries to conclude, as a matter of law, that Claimant is entitled to summary judgment. At his deposition, Claimant initially testified that a 4½-foot unsecured "stop and go" paddle hit him in the head when the truck driver "peeled off and started going fast" after the last cone had been picked up.[3] Later in his deposition, he testified that approximately five minutes elapsed between the time the driver accelerated and the time he was hit in the head by the paddle at a time when the truck was traveling at a constant speed of 50-55 miles per hour.[4] According to the truck driver, however, his speed never exceeded 30 miles per hour.[5] There is also evidence that Claimant was hit twice by the paddle. According to the affidavit of Claimant's coworker, Nunzio Bonefede, Claimant was initially hit in the shoulder by the paddle as the truck began to accelerate. Then, according to Mr. Bonefede's affidavit, Claimant "turned his body" to secure the paddle in the back of the truck when he was hit for a second time by the paddle, this time in the head.[6] Both the New York State Department of Transportation Construction Employee Accident Report - Form C[7] and the Employer's Report of Work-Related Accident (C-2 Form)[8] indicate that the Claimant had moved to secure the paddle when he fell out of the back of the pickup truck.

This evidence raises several questions of fact. First, were Claimant's shoulder and head injuries caused by impact with the roadway when he fell out of the truck, or were they caused by the blows from the unsecured paddle? If the latter, then arguably the failure to secure the paddle was the proximate cause of Claimant's injuries, and not any violation of the Industrial Code. If Claimant's injuries occurred when he fell out of the truck, then the question becomes what caused him to fall out of the truck. Was it the sudden acceleration of the truck? Was it the speed of the truck? Or did Claimant lose his balance and fall out of the truck as he moved to secure the paddle? I simply cannot conclude, as a matter of law on the record before me, that the failure to provide a seat or platform was the proximate cause of Claimant's injuries.

Finally, comparative negligence is a valid defense to a Labor Law §241(6) action (Long v Forest-Fehlhaber, 55 NY2d 154, supra). Here, the Defendant has raised Claimant's own comparative negligence as a defense, and there is evidence that Claimant and his coworker Bonefede were responsible for securing the stop and go paddles in the back of the pickup truck.[9] Factual issues with respect to this defense should be resolved at trial (Fisher v Brown Group, 256 AD2d 1069).

Accordingly, Motion No. M-66895 is denied. A calendar call to set a trial date will be scheduled as soon as practicable.

March 31, 2004
Rochester, New York

Judge of the Court of Claims

  1. Decisions and selected orders of the Court of Claims are available on the Internet at
  2. [2]See page 37 of Claimant's deposition, attached as Exhibit D to Defendant's opposing papers, and page 13 of the deposition of Douglas Koenig, the State's engineer-in-charge, attached as Exhibit B to Claimant's motion papers.
  3. [3]See pp. 37-38 of Claimant's deposition, attached to Defendant's opposing papers as Exhibit D.
  4. [4]See p. 43 of Claimant's deposition, attached to Defendant's opposing papers as Exhibit D.
  5. [5]See affidavit of Steve Schultz, attached to the supplemental affidavit of Defendant's counsel as Exhibit A.
  6. [6]See affidavit of Nunzio Bonefede, attached to the supplemental affidavit of Defendant's counsel as Exhibit B.
  7. [7]Attached to the affidavit of Defendant's counsel as Exhibit E.
  8. [8]Attached to the affidavit of Defendant's counsel as Exhibit F.
  9. [9]See affidavits of Steve Schultz and Nunzio Bonefede, attached to the supplemental affidavit of
Defendant's counsel as Exhibits A and B respectively.