Practice point: Plaintiff and his coworkers were moving a piece of equipment across a flat platform when, according to plaintiff's testimony, the equipment pinned him against a column. The Appellate Division determined that, based on plaintiff's testimony, the equipment that pinned him to the column was not a "falling object," that he was not a "falling worker," and that the accident did not otherwise follow from the application of the force of gravity. Therefore, the Appellate Division determined that § 240(1) does not apply
The Appellate Division also affirmed the dismissal of plaintiff's § 241(6) claim. Plaintiff's reliance on 12 NYCRR 23-6.1(c) and (d) is misplaced because his accident did
not arise out of the operation or loading of "material hoisting
equipment." Even considering the affidavit stating that the
equipment was being loaded onto a forklift at the time of the
accident, subdivisions 23-6.1(c) and (d) do not apply because
the general requirements of those provisions do not apply to fork-lift trucks. In addition, there is no evidence that the accident was caused by the unsafe operation of material
hoisting equipment, or an overloaded or
improperly balanced load being moved by material hoisting equipment.
Student note: Section 23-1.5 of the Industrial Code does not support a § 241(6) cause of action.
Case: Martinez v. 342 Prop. LLC, NY Slip Op 03770 (1st Dept. 205)
Here is the decision.
Tomorrow's issue: A slip-and-fall claim relying on defendant's own rules and guidelines.
