This appeal addresses the interpretation of NY Labor Law § 240(1) and NY Labor Law § 241(6). The plaintiff, Robert Bish, was a cement truck driver who was injured following a slip and fall off of an affixed ladder to the cement truck he was operating while on the defendant, Odell Farms’ property. Plaintiff commenced a personal injury action against defendant in the Supreme Court of Chautauqua County. Defendant moved for summary judgment, which was granted in part, but denied with respect to NY Labor Law § 240(1) and NY Labor Law § 241(6). Defendant appealed the denial of its summary judgment motion, and this court reversed the lower court’s decision, concluding that the summary judgment motion should have been granted in its entirety.
Plaintiff’s employer contracted with defendant to deliver cement to its property for purposes of constructing a bunk silo. After the cement truck was unloaded, plaintiff drove the truck to a nearby ditch on Defendant’s property in order to wash out the truck, which is a routine procedure. While washing the truck, Plaintiff was standing on a ladder affixed to the truck, and stepped on a wet rung of the ladder, falling off and injuring himself.
The language of NY Labor Law § 240(1) is to be construed liberally in order to protect workers (Wicks v. Trigen-Syracuse Energy Corp., 877 N.Y.S.2d. 791 (4th Dep’t. 2009), but it “must not be strained to accomplish what the Legislature did not intend” (Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y. 3d 280, 292 (2003)). Here, the court the court held that plaintiff was not engaged in a type of activity that the legislature intended to impose liability for under NY Labor Law § 240(1). The routine washing of a cement truck is not an “erection, demolition, repairing, altering, painting, cleaning, or pointing” of a “building or structure” within the meaning of NY Labor Law § 240(1). Furthermore, the court rejected the argument that because Plaintiff operated the machinery of the cement truck to assist the pouring of the cement as part of construction of the bunk silo, that he was engaged in the “construction” of a “structure or building” within the meaning of NY Labor Law § 240(1).
With regard to NY Labor Law § 241(6), the court held that it was inapplicable because plaintiff was not engaged in “construction work” within the meaning of the statute when he fell off the ladder. Plaintiff was merely washing his truck as a routine procedure. For those reasons the court held that Defendant’s summary judgment motion should have been granted in its entirety.
989 N.Y.S.2d. 719 (4th Dep’t. 2014)