Fourth Department

TOPICS:Labor Law § 240(1), Labor Law § 241(6)

NALBONE V. VANDERBILT PROPS, INC. 181 A.D.3d 1326 March 20, 2020

The plaintiff was employed as a cement finisher and was injured when a cement chute that was attached to a cement truck unexpectedly fell and struck him while the truck was discharging cement. The chute was attached to and locked into position on the truck at a height of 10 feet and was angled downward toward cement forms on the ground. The plaintiff argued this was an elevation-related risk based upon its height and also that the accident occurred due the effects of gravity. The defendant argued the chute was at the same height as the plaintiff and this was not the type of accident Labor Law § 240(1) was created to protect against. The court dismissed the § 240(1) claim because the plaintiff was not injured as a result of an elevation-related risk. The plaintiff also cited to a number of Industrial Code violations in support of his § 241(6) claim. However, the court dismissed the § 241(6) claim because the Industrial Code provisions cited by the plaintiff were inapplicable to the facts of the case.

PRACTICE NOTE: To support a § 240(1) claim, the plaintiff must have been injured as the result of an elevation-related risk.