Noting a discrepancy between some of New York's appellate courts, in Naughton v. City of New York, the Appellate Division, First Department (which covers appeals from the trial courts in New York and Bronx Counties) recently modified a New York County trial court's order that had dismissed a truck driver's claim that he was hurt after falling 15 feet to the ground from the top of a 10-foot load of wall panels that were on the back of his flatbed truck.
Apparently, the driver was injured when one of the loads of panels that had been secured by one of his co-workers rammed into him, knocking him to the ground. Plaintiff claimed that he was entitled to summary judgment on his Labor Law §241(6) claim because the defendants had violated the Industrial Codes pertaining to material hoisting and tag lines, 12 NYCRR 23-6.1(h).
Interestingly, although the Second and Third Departments do not apply 12 NYCRR 23-6.1(h) as a predicate for §241(6) liability, the First Department in this case took the opportunity to reiterate that it does. Therefore, the appellate court found in favor of the truck driver on the issue of liability.