Commercial Truck Accident

Published on: May 11, 2014

Truck Accident 12

by Stephen Bilkis

The respondents and plaintiffs in this case are Marcy Drucker and Leonard Hoffman, who are co-partners as the administrator of the estate of Samuel Hoffman. The defendant and appellant of the case is Knight of Rest Products Corporation. The case is being heard in the First Department of the Supreme Court, the Appellate Division.

The case involves a person injury negligence action and was heard by a jury. The jury returned with a verdict for the defendant, but through a motion of the court the verdict was set aside as contrary based on the credible evidence available in the case. The defendant is appealing this motion and states that the plaintiff did not prove prima facie in the case and the verdict should not have been set aside as the jury was not needed to draw the inference of negligence. The defendant states that the order to set aside the verdict and granting a new trial should be reversed and the verdict entered in favor of the defendant.

Case History

Published on: May 7, 2014

Labor Law §§240 (1) and 241 (6)…cont

by Stephen Bilkis

The project manager for the construction site testified that it was either his job or the job of the supervisor/foreman to tell delivery trucks where to put their loads. He testified that he was notified that a delivery was going to be made to the site that morning and that in turn called the supervisor. He stated that he told the supervisor to only put two or three pallets on the second floor and no more than that. He stated that the supervisor said that he would comply. After the accident, the project manager testified that the supervisor came to him and apologized. The project manager stated that the supervisor had confessed to him to having more than three pallets put on the second floor because “he wanted to make his job easier, so he would not have to go down to the ground floor.” The project manager also testified that he had told them that even with only the three pallets on the second floor that they would need to be spread out to the side walls after they were placed on the second floor. He stated that he learned later that the laborers had been unable to keep up with the speed of the delivery truck in placing the pallets.

The injured laborer filed his lawsuit citing breaches of Labor Law §§240 (1) and 241 (6) requesting a summary motion to show negligence against the two companies that were in charge of the construction site and its safety. Under Labor Law §240 employers are required to provide safety devices to prevent falls for workers who are working at elevations. In this case, the company failed to provide any type of safety device and so they are liable under this law for the employee’s injury. The law states, “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” In this case, the company failed to abide by these restrictions and the employee was injured. The court finds them liable under this section.

Labor Law § 241 (6) states, “All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places.” Clearly, this was not the case in this situation. The supervisor, knowing the danger to the employees if the load was placed on the unfinished floor continued to command the delivery driver to overload the floor until it collapsed injuring the victim.

Published on: May 4, 2014

Labor Law §§240 (1) and 241 (6)

by Stephen Bilkis

On March 12, 2002 a building was under construction at 195 St James Place in Brooklyn, New York. A cement bricklayer was working laying cement blocks on the second floor of the building. The second floor was partially constructed with metal beams and decking, but the front wall was still open. A crane type of machine that is used to place pallets of materials on the upper floors of the building was brought in to place several fully loaded, very heavy pallets on the second floor.

Almost as soon as the pallets were placed, the cement brick layer went over to them to get a bag of cement. As he approached the pallets, the floor gave way under the weight of the pallets. The cement brick layer and the heavy materials that were on the pallets, plummeted 15 feet to the lower floor causing the victim to sustain severe injuries. The victim filed a lawsuit against the company who delivered the materials that collapsed the floor and against the company that the construction supervisor worked for.

The driver of the crane type truck that delivered the heavy materials to the site testified at trial. He stated that when he arrived at the site and saw the condition of the building, he prepared to unload the truck on to the sidewalk. He was approached by a supervisor of the construction site who told him that he would need to lift the pallets up to the second floor. He testified that he informed the supervisor that the pallets weighed much too much to be loaded directly on to the second floor. He advised the supervisor that he thought the weight would cause the floor of the building to collapse.

Published on: April 30, 2014

The worker was knocked off of the truck

by Stephen Bilkis

On May 13, 2005 a iron worker subcontractor for the construction manager of the New York Times Building located at 8th Avenue and 40th Street in Manhattan, was unloading two steel beams from a delivery truck. They were conducting an operation called, “shaking out the steel” in which each beam is lifted by a crane and rotated so that it is in the proper placement to be lifted up to the building where it will be placed. Each of the beams is about forty feet long, fourteen inches high, and thirty six inches wide. They weigh between 4 and 41 tons each. The first beam was lifted and placed down on the truck bed without issue. The second beam was going to need to be adjusted by the employee to rotate it into the proper position. The employee mounted the truck and was attempting to rotate the beam when the crane unexpectedly dropped the beam down onto the truck. The worker was knocked off of the truck and onto the ground. The first beam rolled off of the truck and landed on the employee while he lay prone on the ground. The commercial truck accident crushed the employees’ legs and caused one of his legs to be amputated. The second beam did not fall from the truck because it was still attached to the crane.

The injured worker filed a lawsuit against the building construction company under Labor Law §240. He stated that it applied because the object fell that was being lifted. The building construction company argued that Labor Law §240 did not apply in this case because at best when the pipe was hoisted by the crane, it did not go above the employees waist as he stood on the truck. The court disagreed. They felt that this is not simply the case of something falling off the back of a flatbed truck. The proximate cause of the accident was that the crane operator dropped the second beam which struck the first beam and knocked it off of the truck.

The employee also sought judgment under Labor Law §200 common-law negligence where it is the duty of an owner or general contractor to provide construction site workers with a reasonably safe place to work. However, the court ruled that since the company did not supervise the work or have direct knowledge of the hazard, that Labor Law §200 cannot apply.

Published on: April 26, 2014

On or around the years of 1997 or 1998, a woman was driving her car on State Route 53

by Stephen Bilkis

On or around the years of 1997 or 1998, a woman was driving her car on State Route 53 at the intersection with State Route 17 when she was involved in an accident. She stated that as she approached the intersection with the intent to make a left turn, she stopped her car and looked to ensure that she could conduct the turn in safety. She stated that she observed a commercial truck, but that it was so far away and moving so slowly as not to be a hazard in her maneuver. However, as she was nearly through her turn, she was struck in the rear quarter panel by a motorcycle that she had been unable to see.

The motorcycle driver stated that he had been driving behind the slow moving truck and decided to pass it. He moved out from behind the truck into the right lane and was attempting to pass the vehicle when the woman’s car pulled out in front of him. In the original trial of the case, the court found that he was 70% at fault in the accident and that the woman who was turning left was 30% at fault in the accident.

He sustained severe injury to his left hand which required him to have surgery and to wear a cast for about one month. However, he had previously injured that hand in a chain saw accident and had limited use of the hand prior to the accident in question. The original trial awarded him only $5000.00 for past pain and suffering. The Supreme Court in this case did not feel that the award was sufficient. It was also noted that the victim had sustained damage to his two front teeth that required them to be pulled and a permanent dental bridge to be placed. His face and lip were cut and his nose was broken. These injuries by themselves would have caused him the substantial pain and discomfort following the truck accident that he was claiming compensation for. The court decided that this award should be raised to $35,000.00.

Published on: April 23, 2014

On December 29, 2003 a worker arrived at a job site at 1955 Second Avenue

by Stephen Bilkis

On December 29, 2003 a worker arrived at a job site at 1955 Second Avenue, New York, New York to install a fence. The worker and his associates were all employees of a sub-contractor for a larger project. Their job was to install the fence. The larger project was for the New York Housing Authority. A different company was installing fuel oil tanks both below and above ground at the housing complex. Whenever a tank needed to be installed, a temporary chain link fence needed to be put up around it. One of those tanks was in the rear yard area at 1955 Second Avenue. The worker and his three co-workers parked their work truckon Second Avenue and unloaded the compressor. The compressor was very heavy, but it was on wheels.

The transport of the compressor was achieved with three men pushing the compressor while a fourth stood in front between handles like a rickshaw to pull and steer it. As they were moving the compressor down Second Avenue, one of the wheels jammed into a hole or depression in the roadway causing it to tilt to one side. The jarring motion of the compressor shoved the victim knocking him to the street. He sustained injuries in the fall. The victim filed a labor law claim because he contends that the City of New York failed to provide a safe place for him to work. His suit was filed against the New York City Housing Authority and against the companies that were in charge of the construction. Since he elected to receive worker’s compensation benefits, he was not allowed by law to file any direct lawsuit against the company that he was working directly for.

The Supreme Court ruled that since the victim was not able to show that the city had any prior knowledge of the sink hole that caused the compressor to tilt, it could not be held liable for any negligence in not having it fixed before the victim had his accident. Further, the victim’s claims against the companies that operated the construction site were dismissed. On the day of the accident, the only company employees that were at the site were the co-workers of the victim and the victim himself. There were no representatives of the charge companies on scene nor were they supervising or directing the task.

Published on: March 6, 2013

Following the accident, the injured party filed a lawsuit against the Water Department and the Town of Hempstead.

by Stephen Bilkis

In fall of 1989, an employee of the water department of the Town of Hempstead borrowed a city pick-up truck to drive it home. He had been allowed on several prior occasions to borrow the city truck to get home. He believed that it was OK for him to borrow it on this date to get home. On his way home, he was involved in an auto accident that resulted in serious personal injury. Following the truck accident, the injured party filed a lawsuit against the Water Department and the Town of Hempstead.

The Town of Hempstead countered that they do not feel that they should be held liable since the employee was not at work or engaged in any city business at the time of the accident. Further, he had not requested permission to borrow the truck on this date. The other times that he had been permitted to borrow the truck; he had asked for and received permission to do so. This was not the case on the night of this incident. In fact, the Staten Island employee’s job for the city did not require the use of a vehicle at all. The employee even testified that he had received specific instructions prior to the date of the accident not to take a truck home. He advised in testimony on several different occasions that no one had given him permission to use the truck on that night. He advised that he took it anyway because he needed to get home. The evidence that was presented in reference to the employee being told specifically that he could not take the truck home was not argued by either side. However, there were no prior violations by this employee or any other on file prior to the accident of the “no personal use” policy that had been implemented in the fall of 1989.

The Justices, however, ruled that since the employee had been allowed on prior occasions to use the truck, he would have believed that there was an inference of implied permission. Vehicle and Traffic Law § 388 (1) states that an owner of a motor vehicle is liable for the negligence of one who uses or operates the vehicle with the owner’s express or implied permission.

Published on: February 28, 2013

Serious injury results when tailgate opens

by Stephen Bilkis

On April 1, 1987, a New York City Department of Sanitation employee was injured at work. That day, he was working with another employee of the New York City Department of Sanitation who was assigned to drive the truck. The injured employee was loading bags of garbage into the truck when the tailgate of the truck popped open and struck him in the groin area. As a result of the accident the Nassau employee suffered serious and permanent physical injuries. The injured employee alleges that the cause of the accident that day was that the other employee had failed to ensure that the tailgate pins locking the tailgate were free from obstruction and fully engaged.

A safety report that was issued following the incident states, “. . .it was apparent that 1 1/2 [inches] of debris by the left pin, and 1 1/4 [inches] of debris by the right pin. This debris, it appears, held the tailgate away from the body of the truck making it unable for the pins to rise to the proper level. The pins being unable to rise to the proper position enabled the tailgate to force open under pressure of cycling when the truck became loaded.” It was exposed that the pins were not checked that date at the beginning of the driver’s shift or when the vehicle was dumped prior to the truck accident. Failure to clear the debris out of the tailgate was a violation of department regulation teletype #86-3431.

Department regulation # 86-3431 states that the operator of a garbage truck in the city is not to rely on the electronic indicators in the cab area of the truck to determine if the tailgate is properly secured. He must get out and visually check the pins to make sure that they are not blocked by debris. The Suffolk safety inspector found debris in both of the pins and it was this debris that kept the pins from locking and permitted the tailgate to open. The supervisor that date stated that the driver was at fault and that he would be duly disciplined. The driver was not disciplined.

Published on: February 22, 2013

Driver is not listed to operate vehicle

by Stephen Bilkis

In 1958, a company obtained an insurance policy for a truck that was routinely operated in the course of their business. On day during the coverage of this policy, the Queens business owner’s nephew was driving the truck and caused a commercial truck accident. The insurance company stated that they did not feel that they should be responsible for the accident because the nephew was not specifically listed to drive the vehicle. There is no argument that the nephew was at fault in the accident itself.

The Manhattan company owner argues that the policy itself clearly states that it covers any person who is driving the vehicle. The issue of if the owner had given permission to his nephew to drive the truck was not addressed during the trial of the issue. The policy states that it will insure not only the company owner, but also, any “person while using the vehicle with his permission.” The court points out that “the duty to defend is broader than the duty to pay.” Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 154, 77 N.E.2d 131, 133.

The court points out that the entire issue of whether or not the insurance company is liable for the compensation that was awarded to the injured parties in this case would have been moot if the insurance company had simply represented the nephew in the first place. If they had done that, then their rights as well as the nephew’s rights would have been protected. Since they did not, the injured parties are allowed by law to seek compensation from the insurance company since the nephew either was not able to pay or simply did not pay the compensation ordered by the court.

Published on: February 20, 2013

While enroute to a fire the fireman was riding on the back step of the fire truck

by Stephen Bilkis

On April 15, 1952 at around 6:30 in the evening, a volunteer fireman in Latham in the town of Colonie, in Albany County fell from the back step of a fire truck and was injured. While enroute to a fire the fireman was riding on the back step of the fire truck. The truck went through a four way intersection that had a saucer shaped drainage ditch in the center of it. The drainage ditch had been installed to correct water run off problem from the private land in the area. The area was very flat and water tended to sit on the surface without running off. The installation of the drainage ditch was designed to improve the problem. In fact, it only partially solved the problem of the water run-off and created a hazardous condition in the intersection of two highways.

When the fire truck crossed over the ditch, the fireman who was on the back stated that he remembered bouncing up about three feet into the air and then he came down into the street and rolled into the drainage ditch. A bystander collected him and took him to a local doctor where he received treatment for injuries to his arm. Later that night, he sought additional treatment from the workers compensation doctor for pain to his chest. The Bronx doctor who treated him stated that he did not remember the exact visit.

In fact, his records of the visit had been lost. He read from his report that he had treated the fireman for chest injuries from his fall from the truck. About six months after that visit to the Brooklyn workers compensation doctor, the fireman began to feel dizzy and sick. He reported to the local hospital where he was found to have a subdural hematoma. A subdural hematoma is a blood clot under the skull bone against the brain. It required brain surgery and he reports that he has been unable to work since the surgery.