The Third Department determined plaintiff had stated causes of action sounding in negligence and a violation of Labor Law 241(6). Plaintiff was driving a truck hauling asphalt to a county roadway paving operation (which had been contracted out to a private company–Graymont) when the truck’s brakes failed. Plaintiff was seriously injured when, after avoiding public traffic, he jumped from the truck which continued on over an embankment. The court upheld the negligence claim against the county which was based upon the county’s permitting public traffic on the road during construction. The court further determined the county was entitled to summary judgment on its indemnification action against the private construction company (Graymont—based upon the county’s contract with the company). And the court upheld the Labor Law 241(6) claim, finding the regulation requiring truck-brake maintenance supported the cause of action:
Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a), which provides that “[t]he brakes of every motor truck shall be so maintained that such truck with full load may be securely held on any grade that may be encountered in normal use on the job.” While the County does not dispute that this provision is sufficiently specific to form the basis for liability under Labor Law § 241 (6), it argues that the regulation is not applicable to the circumstances here. Mindful that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” …, we cannot agree. Although the regulation speaks in terms of the ability of the brakes to “h[o]ld” the construction vehicle, the purpose of the regulation is to ensure proper functioning of a truck’s brakes on any terrain or grade normally encountered. Thus, we find that the language of the regulation addresses not only the ability of a truck’s brakes to hold a stopped truck in place, but also the ability of the brakes to bring a moving vehicle to a stop. Duffina v County of Essex…, 515346, 3rd Dept 11-14-13