Labor Law: Is the Failure to Allege the Existence of a Safety Device that would have Prevented an Accident Fatal to a 240[1] Claim?

In a a case sure to be heard by the Court of Appeals, the Third Department -- over two dissents -- affirmed the dismissal of the plaintiff's claim pursuant to Labor Law 240(1) arising out of the plaintiffs fall from a stack of steel trusses laying on a flat bed truck (Berg v Albany Ladder Co., (slip op. May 17, 2007). The facts of the case were simple: plaintiff was helping to unload steel trusses from a flatbed truck, when the trusses gave way and slid forward, causing the plaintiff to fall to the ground -- approximately 10 feet -- sustaining numerous injuries.

Writing for the majority, Justice Lahtinen, opined that "in the absence of some risk-enhancing circumstance that a statutory device would address, the special statutory protection [of Labor Law 240(1)] does not apply to a worker falling from the back of a truck or trailer." In concluding that the plaintiff failed to state a claim under 240(1), the majority first observed that, while the plaintiff did not technically fall from a truckbed (he fell from trusses placed on the truckbed), he had been able to safely ascend and descend from the position prior to the accident. It placed special emphasis, however, on the fact that the plaintiff acknowledged that there were no particular safety devices that could have prevented the accident. Based upon the fact that there were no alleged safety devices that were lacking, the majority concluded that the accident did not involve "the special risks protected by Labor Law 240(1)" and, thus, occurred as a result of the ordinary dangers present at construction sites.

Presiding Justice Cardona, penned a dissenting opinion (joined by J. Mugglin), taking issue with the majority's holding on the distinct issue of the Labor Law 240(1) claim. The dissent, asserted that on account of the fact that there were elevation differentials, the distance between the work surface and the ground was relevant (here about 10 feet). Insodoing, the dissent differentiated the Court of Appeals decision in Toefer v Long Island Railroad, 4 NY3d 399 [2005]. The Toefer decision stood for the principle that workers that fall from a truckbed (4-5 feet off the ground), may not -- as a matter of law -- recover under Labor Law 240(1), because it is not the sort of "elevation-related risk" contemplated by the statute. Here, the dissent accurately pointed out that the plaintiff here, did not fall from a truck bed, but, rather, from a bundle of trusses perched atop a truck bed (a total height of 10 feet).

The dissent also found that plaintiff's failure to identify a particular safety device that would have prevented the accident was not determinative. Moreover, the dissent found that had a safety device been provided, the plaintiff could have avoided climbing atop the trusses to complete the job (citing Worden v Solvay Paperboard, LLC, 24 AD3d 1187, 1188 [2005] [holding that a safety device, such as a lift, ladder or harness would have allowed the claimant from climbing on construction materials perched on a truck bed, and thus, claimant's resulting injury was the sort contemplated by the statute]).

Insofar as there is a 3-2 split, the Court of Appeals will likely hear the case (if the Appellant decides to do so). If so, the Court will have to engage in more judical line-drawing with respect to Labor Law 240(1). The interesting issue is whether the Court of Appeals will insert this new requirement, advocated by the majority, mandating dismissal if the claimant in a Labor Law 240(1) is unable to point to a specific safety device that would have prevented the accident.