This claim seeks damages for injuries sustained by claimant Floyd McCann, who
was injured while working in the employ of a demolition subcontractor at a
worksite owned by defendant State of New York.
The claim asserts causes of action for common law negligence and violations of
Labor Law §§ 200, 240 and 241(6). Defendant moves for summary
judgment dismissing the claim in its entirety; claimant cross-moves for partial
summary judgment on the issue of liability pursuant to Labor Law § 240 (1).
For the reasons that follow, the Court will grant defendant’s motion and
dismiss the claim.
The pertinent facts of this claim are
Claimant was working for L.M.
Sessler Excavating and Wrecking (L.M. Sessler) as a truck driver on the evening
of March 10, 2000. L.M. Sessler was a subcontractor engaged in the demolition
of a bridge on Route 85 in Albany County, and claimant was assigned to drive a
flatbed truck loaded with steel beams that had been removed from the bridge.
After two large-I beams had been loaded on the bed of claimant’s truck, he
drove it to a different location at the worksite so that two smaller beams could
be loaded on top of the larger I-beams. To accomplish this task, LaVerne
Sessler, Jr. (Sessler), a principal of L.M. Sessler, was operating an excavator
equipped with an apparatus
that was attached
to the arm of the excavator. Sessler used the apparatus, or
“grapple,” as he described it, to grab and lift the smaller beams
and swing them around so they were positioned above the truck bed. While
Sessler placed the first smaller beam on top of the I-beams without incident,
the second smaller beam was not perfectly flat, and Sessler was unable to
satisfactorily place it on the flatbed for transport. According to his
uncontradicted testimony at an examination before trial (EBT), Sessler released
the beam from the grapple onto the flatbed and then used the grapple to
intentionally slide the beam off the truck onto the ground so that he could
rotate the beam, pick it up, and reposition it so that a different surface of
the beam would lay atop the I-beams. As Sessler was sliding the beam off the
truck, claimant began to walk from the cab end of the truck toward Sessler in
the direction of the sliding beam. Claimant was struck by the falling beam,
which landed on his leg, causing severe injury.
Claimant seeks the imposition of absolute liability upon defendant in
accordance with Labor Law § 240 (1), as defendant is the owner of the
property where claimant was injured (see Gordon v Eastern Ry.
Supply, 82 NY2d 555, 559-560 ; Ross v Curtis Palmer Hydro-Elec.
Co., 81 NY2d 494, 500 ). Liability does not attach by the mere
happening of an accident however, as a claimant/plaintiff seeking the
extraordinary protection of Labor Law § 240 (1) must establish three
elements: (1) that he or she was engaged in an activity enumerated by the
statute (see e.g. Joblon v Solow, 91 NY2d 457 ) or a
related activity necessary and incidental thereto (see Lombardi v
Stout, 80 NY2d 290, 296 ); (2) that the injury was sustained due to an
elevation-related hazard (see Ross v Curtis Palmer Hydro-Elec.
Co., supra at 501; Rocovich v Consolidated Edison Co., 78 NY2d
509, 514 ); and (3) that a required safety device was absent or defective
and the absence or defect was a proximate cause of claimant/plaintiff’s
injury (see Ross v Curtis Palmer Hydro-Elec. Co., supra, at
501; Heidelmark v State of New York, 1 AD3d 748, 749 [3d Dept 2003]). In
particular, “[i]n order to establish Labor Law § 240 (1) liability in
a falling object case, ‘[a] plaintiff must show that the object fell,
while being hoisted or secured, because of the absence or inadequacy of a
safety device of the kind enumerated in the statute’” (Isabell v
U.W. Marx, Inc., 299 AD2d 701, 702 [3d Dept 2002], quoting Narducci v
Manhasset Bay Assoc., 96 NY2d 259, 268  [emphasis in original]). An
object that is deliberately dropped in the workplace is not a hazard that is
contemplated by Labor Law § 240 (1) (see Isabell v U.W. Marx,
Inc., supra at 702; see also Roberts v General
Electric Co., 97 NY2d 737, 738 [asbestos deliberately dropped from a
height of 12 feet was not a material that was being hoisted or a load that
needed securing for the purposes of the undertaking at the time it fell, and
thus Labor Law § 240 (1) is inapplicable]), unless the device used to drop
the object did not perform as intended to complete the task at hand or was
defective or malfunctioned (cf. Corey v Gorick Constr. Co., 271
AD2d 911, 913 [3d Dept 2000]).
This claim cannot be sustained because the beam that struck claimant had been
made to fall off the flatbed of the truck. As stated by
Sessler at his EBT, “after a couple of attempts to get the beam in a place
I was comfortable with, I chose to let go of the beam and pull it back off the
truck to reposition it” and “I intentionally pulled [the beam] off
the side of the truck” (Maher Affirmation, Exhibit F, at 23-24,
testimony that Sessler was not putting the small beams onto the flatbed in a
proper and safe manner (Maher Affirmation, Exhibit E, at 93-94), there is no
evidence in the record that the equipment did not “perform as intended to
complete the task at hand” (Corey v Gorick Constr. Co.
at 913), or that the equipment malfunctioned. Despite
claimant’s general testimony that the use of a crane might have been a
better choice for loading beams onto the truck, there is no evidence in the
record that the use of a hoisting or securing device of the types enumerated in
Labor Law § 240 (1) was necessary or expected (see Isabell v U.W.
at 702; compare Cammon v City of New
, 21 AD3d 196 [1st Dept 2005] [unrefuted testimony addressed the lack of
safety devices and how the presence of those safety devices may have prevented
claimant’s accident]). Thus, claimant’s accident was the result of
a general workplace hazard and not the result of an occurrence that gives rise
to liability under Labor Law § 240 (1) (see Roberts v General
, at 738; Isabell v U.W. Marx, Inc.
, at 702; see also Perillo v Lehigh Const. Group.
, 17 AD3d 1136, 1137 [4th Dept 2005] [“the remains of the
partially demolished partition wall were not ‘materials or loads’
that were being ‘hoisted or secured’ and thus Labor Law section 240
(1) does not apply”]). Accordingly, the Labor Law § 240 (1) claim
must be dismissed.
The parties’ further arguments will, however, be briefly addressed.
Claimant argues that he is entitled to the protection of Labor Law § 240
(1) because, as a truck driver removing steel beams from a demolition project,
he was engaged in an activity sufficiently necessary and incidental to
demolition, a statutorily enumerated activity (see Lombardi v
Stout, supra; Orr v David Christa Const., Inc., 206 AD2d 881
[4th Dept 1994]; Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002
[4th Dept 1992]; cf. LaFontaine v Albany Management, Inc., 257
AD2d 319, 320-321 [3d Dept 1999], lv denied 94 NY2d 751 ). This
argument has some force, but the argument, standing alone, is insufficient to
sustain claimant’s cross motion for summary judgment or to defeat
defendant’s motion because it addresses only one of the conjunctive
elements of a Labor Law § 240 (1) cause of action.
The Court agrees with defendant’s contention that claimant’s
accident did not involve an elevation-related hazard encompassed by Labor Law
§ 240 (1). The evidence submitted demonstrates that claimant and the truck
were both situated on the ground, that the bed of the truck was no more than
four and one half feet above the ground, and that the beams fell from an
elevation of no more than seven feet. Because the falling beam was situated at
the same level at which claimant was working, the facts do not support a viable
Labor Law § 240 (1) claim (see Jacome v State of New York,
266 AD2d 345, 346 [2d Dept 1999] [“[t]he task of unloading a truck is not
an elevation-related risk simply because there is a difference in elevation
between the ground and the truck bed”]; Phelan v State of New York,
238 AD2d 882, 883 [4th Dept 1997], lv denied 90 NY2d 812 
[“an incident involving objects falling from the bed of a flatbed truck is
not the type of special, elevation-related hazard contemplated by Labor Law
§ 240 (1)”]; see also St. Louis v Town of North Elba,
17 AD3d 832, 833 [3d Dept 2005]; Puckett v County of Erie, 262 AD2d 964,
965 ; Malecki v Wal-Mart Stores, Inc., 222 AD2d 1010 [4th Dept
1995]; compare Lociciero v Princeton Restoration, Inc., 3 Misc 3d
1109[A] [Sup Ct, Suffolk County, 2004] [plaintiff truck driver was injured by
metal mesh bundle that fell 20 feet while being hoisted to the second floor of
the building under construction]). Claimant’s reliance on Orr v David
Christa Const., Inc., supra, for the proposition that such a claim
can be stated when an object has fallen off a flatbed trailer is misplaced, as
Orr considered only the issue of whether the plaintiff was engaged in a
protected activity (see Phelan v State of New York, supra;
Flihan v Cornell University, 237 AD2d 921, 922 [4th Dept 1997]).
In sum, the claim must be dismissed because: (1) claimant’s accident
occurred as the result of the beam being deliberately made to fall off the truck
by equipment that was not defective and was performing as intended, and the
operation of sliding the beam off the truck did not implicate the use of safety
devices, and (2) the accident did not involve an elevation-related hazard that
is encompassed within the protections of Labor Law § 240 (1).
Accordingly, claimant’s cross motion for partial summary judgment is
DENIED, defendant’s motion for summary judgment is GRANTED, and Claim No.
107228 is hereby DISMISSED.
(1) Notice of Motion for Summary Judgment, dated January 5, 2007;
(2) Affirmation in Support of Summary Judgment of Stephen J. Maher, AAG,
January 5, 2007, with exhibits A-H;
(3) Defendant’s Memorandum of Law, dated January 5, 2007;
(4) Notice of Cross-Motion, dated January 22, 2007;
(5) Affidavit of Michael G. Bersani, Esq., sworn toJanuary 22, 2007;
(6) Claimant’s Memorandum of Law, dated January 22, 2007;
(7) Reply Affirmation of Stephen J. Maher, AAG, dated February 5, 2007.