Articles Posted in Big Rig Accident

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Michael A. Hawkins is the plaintiff in this case. The defendants of the case are Edward F. and Margaret Miracco, Ashley N. Lawrence, Noreen T. Ebbighausen, Jan Czaplicki, and Terry Gallagher, Inc. The case is being heard in the Supreme Court of the State of New York in Nassau County. Judge Karen V. Murphy is overseeing the case.

Motion
The motion before the court is made by the defendants Edward F. and Margaret Miracco and requests a summary judgment to dismiss the complaints and any cross complaints made against them by the plaintiff Michael A. Hawkins.

The plaintiff, Michael A. Hawkins has filed a cross motion for summary judgment in the case in his favor. The defendants Terry Gallagher and Jan Czaplicki have filed cross motions as well for granting summary judgment in their favor.

Case Background
This case arises from an accident that occurred in Melville, New York on Spagnoli Road. The accident occurred on the 11th of December around 9:20 in the morning. The accident involved a car that is owned by the defendant Noreen T. Ebbighausen and was operated by the defendant Ashley N. Lawrence and a dump truck that is owned by Terry Gallagher Inc. and was driven by Jan Czaplicki. The car driven by Lawrence came in contact with the dump truck. This caused the truck to swerve off the road and into a driveway. There was a vehicle at a complete stop in the driveway at the time. This vehicle was driven by Edward Miracco. The plaintiff, Michael Hawkins was a passenger in the car and was asleep when the truck accident occurred.

The defendant Edward Miracco testifies that he was at a full stop in the driveway of his place of employment when the dump truck veered off the road and into the driveway, hitting his car. This was confirmed by the defendant Jan Czaplicki.

Case Discussion and Decision
The plaintiff, the Gallagher defendants, and the Miracco defendants all seek summary judgment in their favor through their instant applications.

A summary judgment is a drastic remedy for a case and is only applicable if the proponent can establish that there are no triable issues of fact in the case.

The plaintiff argues that the evidence of skid marks, shown in pictures from the accident warrants that the Miracco defendant’s summary judgment motion should be denied. The plaintiff alleges that it would be possible for a jury to conclude that Miracco had started to enter the road and then stopped suddenly as shown by the skid marks. The jury may also conclude that the vehicle driven by Czaplicki swerved into the lane of Lawrence because of the sudden skid made by Miracco. However, the plaintiff does not offer any evidence to support that the skid marks shown in the photograph were made by the Miracco car. For this reason, the court grants summary judgment in favor of Miracco and the complaint is dismissed.

The motion for summary judgment made by the Gallagher defendants is denied. The argument made by the defendants is erroneous in the fact that they state a rear end collision establishes prima facie in the case of liability. There is no evidence to show that this is a rear end collision matter. The version of the accident given by the defendants is remarkably different.

The cross motion of the plaintiff for summary judgment on the basis of liability is granted.
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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.

Because of this, the majority of the Westchester Justices ruled that the employee had discretion to use the vehicle and is liable to cover him in the accident.
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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.

The court found that on the date of the accident it was the driver’s responsibility to check the pins. The driver stated that he did examine them. There are unresolved factual matters as to how the accident occurred and what the proximate cause of the accident was. Any summary judgments would be inappropriate in such a case. It was referred for trial.
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On January 24, 1976 at around eight o’clock in the evening, an abandoned vehicle that was parked on the side of the roadway caught fire. The New York Fire Department responded to the scene, but the fire truck driver parked the truck in front of the vehicle that was on fire. Four other fire fighters began to battle the blaze. The fire captain on scene was holding a lantern and waving it to direct traffic. There were no police officers on the scene. The Nassau captain on scene noticed that a car was coming down the road and picking up speed. He attempted to get the driver’s attention so that he would not hit the four fire fighters who were working on the burning car. The vehicle did not slow up and proceeded to hit all of the firefighter killing one and seriously injuring the others. The injured firefighters filed a lawsuit alleging among other things that the driver was negligent, but that the City was also at fault for the accident because of the following: they failed to remove the abandoned car which caught fire based on the municipality’s responsibility to maintain its roadways in reasonable and safe condition for reasonable and foreseeable use.

The City failed to set up fire lines, the City was responsible for the actions of the fire truck driver when he placed the fire truck in front of the vehicle rather than using it to properly protect the safety of him and the other firefighters. The Suffolk Court left it to the jury to decide if the decisions of the Captain and the fire truck driver were questions of professional judgment or not. If it is determined that the decisions were those of professional judgment, then the City cannot be held liable. The jury was also instructed that under General Municipal Law § 205-a that a firefighter has an “independent statutory cause of action to recover damages for injuries or wrongful death caused ‘directly or indirectly as a result of any neglect. . .in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town, or city governments or of any and all their departments, divisions, and bureaus.'” This law applies to this situation because it is clear that the city failed to comply with several vehicular and traffic laws in failing to remove the abandoned vehicle in a timely manner.

The jury found unanimously that the city was negligent in failing to remove “the abandoned vehicle, failing to establish fire lines, and failing to park the fire truck properly, and that each of these acts of negligence was a proximate cause of the accident. It also determined that the (fire truck driver and the captain) as well as (the vehicle driver) were guilty of negligence which was a proximate cause of the truck accident.'” They also decided that the city was liable on the statutory cause of action.

The Supreme Court found that the causes of action against the city “should have been dismissed as a matter of law, prior to their submission to the jury.” In support of this decision, they cite that there was no evidence that under common law negligence that the abandoned vehicle was a danger to pedestrians or to vehicular traffic. The car had not been left in the middle of the street or on the sidewalk, but was safely off to one side of the roadway. It was clear that the city had notice of the abandoned vehicle and failed to remove it, but it “is well established that ‘public entities remain immune from negligence claims arising out of the performance of their governmental functions . . . unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty.'” (Miller v. State of New York, 62 N.Y.2d 506, 510, 478 N.Y.S.2d 829, 467 N.E.2d 493; O’Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33; Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883). Because the removal of the abandoned car was a government function, there was no special relationship with the city and the city cannot be held liable in a common-law negligence suit for not removing the car. This same argument is true for the actions of the fire truck driver and the captain.

The fire truck driver and the captain both testified that the reason for parking the fire truck in front of the burning car was that it made it easier to get the hoses off of the back of the truck onto the car fire. If they had parked on the side, or behind the car, the hoses would have had to be pulled around the fire truck. This was an “error of judgment on the part of the Fire Department officers in their conduct of the fire-fighting activities.” Because of this law, the city cannot be held liable for these actions under a common law negligence suit.

Additionally, as far as the regulations of the fire department § 11.5.21 (a) which provides that “Initial fire lines shall be established by the officer in command at a point beyond the furthest apparatus, whether operating or parked”. The court determined that the captain was not in violation of this regulation and therefore, this “theory of liability should not have been submitted to the jury.” 507 N.Y.S.2d 193,120 A.D.2d 24.

Thus, the Justices ordered that the sole liability for this accident rests on the driver of the car. The original case has been set aside as it respects everything concerning liability belonging to the City of New York or either the fire truck driver or the captain. A new trial is granted to the driver of the motor vehicle solely on the issue of damages.
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On June 3, 2004 on Jamaica Avenue near the intersection with Route 112 in the Town of Brookhaven, Suffolk County, New York, a man was involved in a three car truck accident that resulted in serious personal injury to a driver of a black Hyundai. The incidents surrounding the accident are that a gas station was under construction on the corner. The construction manager of the gas station operated a white van that was illegally parked in front of the no stopping or parking sign on the side of the roadway. A dump truck also working on the gas station was dropping off a dumpster at that location and was blocking part of the roadway. The driver of the dump truck stated that he put out cones and set his lights to emergency flash to let oncoming traffic know that there was a hazard. The first vehicle in the accident completed a left hand turn onto the roadway and was blocked by the dump truck. She stopped in traffic to wait for the dump truck to move. The second vehicle did not see her stop and struck her vehicle, which knocked her into a third vehicle and ultimately it was knocked in to the vehicle of the victim on the opposite side of the roadway. The victim filed a lawsuit against the construction manager for causing the truck accident. The construction manager alleges that he was not responsible for any vehicle other than his white van and that the dump truck was not his or in any way under his control. He states that liability should be attached to the dump truck company and not to him.

The Nassau Court hearing this matter states that there are serious issues of fact that need to be determined. Whenever such issues of fact exist, it is incumbent upon the Court to ensure that a jury hears the arguments. Any motions for summary judgment must be denied as a matter of course in such circumstances because the Court cannot determine which issues of fact are credible and which ones are not credible. Because material facts of this accident are in dispute or different inferences may reasonably be drawn as the facts of this case, the Supreme Court must deny the motion for summary judgment as requested by the construction manager and his company. Only a trial can resolve issues of fact that are presented.
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On July 2, 1955 at around four o’clock in the afternoon, a truck driver left the Twin Bridges bar and headed west on Route 11 between Mooers, New York, and Champlain, New York. At some point his truck came in contact with a vehicle that was eastbound. The eastbound vehicle was occupied by a male driver, his wife, two daughters, and his daughter in law. The Staten Island male driver of the car was killed in the commercial truck accident. The wife was still in the hospital and unable to testify at the time of trial. The daughters both claimed that they saw the truck shortly before impact cross over the center line of the road to sideswipe their vehicle. The daughter in law, who was seated directly behind the deceased driver stated that she had observed the truck cross the center line previously and then return to the correct side of the road. She stated that as the gap closed between the two vehicles, the driver of the truck crossed the center line again and this time hit their car with his truck.

The driver of the truck was criminally charged with Driving Under the Influence of Alcohol or Drugs and later Vehicular Homicide. He was convicted and sentenced to five years imprisonment. The jury was not privy to this information and although there was much discussion about the truck driver’s condition, there was no proof of his condition presented in the court. In fact, although it was pointed out that at the hospital following the accident, the truck driver’s blood was drawn and was given to the State Trooper, the results of that blood alcohol content kit was not discussed in the civil trial. There was not even a mention that it was or was not tested. If the jury had been told of his criminal charges and arrest, the inference could probably have been made.

However, as it stands, the victim’s family’s Westchester attorney only brought forth witnesses who could testify to the truck driver’s condition the night before while he was at the same bar. He had been so drunk that he had tossed his truck keys to another patron. He was described as being loud and boisterous and causing a scene. However it was pointed out that this was his normal demeanor even if he was sober. It was clear that he was asked to leave the bar.

The Justices found that at no time in the original trial was the term intoxication defined. The Justices also found that the evidence of his demeanor and condition from the night before was highly prejudicial. They felt that this blurred the real issue “and confused the jury to a point which deprived the defendant of a fair trial.”

In this case, judgment is reversed on the law and a new trial ordered.
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A 20-year old Nassau teacher applied to the Long Island State Park Commission for a summer job. He worked as a laborer for the Commission at a warehouse in Jones Beach. One July day, the teacher was thrown off from a truckowned by the Commission after the axle of the truck broke. For the remainder of July and during the month of August that year, he did not work. For a six-week period, he was paid by the Workmen’s Compensation Board, which paid for his hospital bill and the bill of his doctor. The teacher returned to his regular employment at a high school on Labor Day.

The teacher filed a suit to recover damages for the personal injuries he sustained as a result of the Truck accident. The teacher also asserted negligence claims against the State of New York and the beach authority.

The teacher testified that during the period of slightly less than three weeks that he worked, he had ridden on the running board, in the back of and inside the power vehicles that were used for transportation. On occasion, he had seen three people riding in the cab. He testified further that, because of the size of his two co-workers, there was no room for him in the cab on the day of the accident, because if he had entered the cab the driver would have been unable to shift gears.

The State and the Authority moved for a dismissal of the claim on several grounds, including that the teacher was not able to show that the State and the Authority were negligent and to prove his own freedom from contributory negligence and that the Workmen’s Compensation is his sole and exclusive remedy since the teacher was a special employee of the Authority at the time of the accident and is bound by his choice of having accepted Workmen’s Compensation from his general employer.

An employee may have both a general and special employer. In this case, the teacher elected to proceed against the Suffolk Commission under the Workmen’s Compensation Law. He may not now bring an action at law against the Authority.

The court also pointed out that the teacher did not offer any evidence to show what caused the axle to break, or whether the State and the Authority knew of the condition of the axle or were aware that any unreasonable risk was involved. In his brief, however, the teacher states that he never claimed any negligence in the operation of the truck, but rather that he predicated his claim upon the fact that he was ordered by his superior to ride upon the running board of the truck and thus was not provided safe transportation.
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A personal injury suit was commenced against a tractor-trailer and the employer of the driver after four adults and one infant, while passengers in an automobile, sustained injuries as a result of a truck accident. The Staten Island driver of the automobile in which they were passengers died as a result of his injuries. A collision occurred between the passenger car and a tractor trailer. The tractor trailer was under lease. This case was tried by the court without a jury and the question of contributory negligence is resolved in favor of the plaintiffs. The defendants appealed.

According to records in court, the trailer truck was without load and deadheaded westward bound from Clinton, New Jersey, to Pittsburgh, Pennsylvania. It had been raining for some time prior to and at the time of the accident. The road surface was wet and visibility was fair. The accident occurred in the early morning about one o’clock. The sources said there was failure in the tractor trailer’s engines and the passenger automobile struck the tractor which rested in its pathway.

Under the Pennsylvania law, the presence of a vehicle on the wrong side of a highway is prima facie evidence of the driver’s negligence and the skidding or sliding of a vehicle of itself does not constitute negligence of the driver. It is thus incumbent upon the plaintiffs to prove that the skidding or sliding of the vehicle was due to the negligence of the driver. The operator of a motor vehicle is bound at all times to exercise reasonable care in its operation. As sliding or skidding of itself does not constitute negligence, something additional must be shown to justify a finding of negligence.

Applying these principles to the case at bar, the Westchester court found negligence in the operation of the trailer truck. The court noted that it is apparent that the trailer tractor failed to keep traction while proceeding up the grade necessary to remain in its lane. Although its first sliding may not have been anticipated, after its driver had straightened out and gained control of the vehicle, since the highway was then free of other traffic, he should have reasonably attempted to ascertain the cause of the slide in order to avoid its repetition, the court said. This he failed to do, and there was no explanation given for the second sliding of the trailer truck.

Accordingly, the court found that the tractor-trailer driver failed to exercise reasonable care in the operation of the trailer truck.

The court also found the employer of the tractor-trailer driver chargeable with the negligence. The lease covering the tractor-trailer provides that the tractor-trailer is solely and exclusively under the direction and control of the lessee.
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The Workmen’s Compensation Board has made an award to the Nassau widow of an employee who suffered a fatal coronary attack, which the Board found was causally related to injuries he sustained in an auto accident during the course of his employment.

According to records in court, the worker was operating his employer’s truck when it was struck by a United States mail truck. The impact caused him to be thrown to the pavement and he was unconscious for several minutes. He was taken to a hospital. The worker continued to do his regular work until his death several days later. According to a Suffolk doctor who was called at the worker’s residence, the worker was acutely ill and was suffering from severe chest pains. After the doctor administered morphine to the worker, he was rushed to the hospital where he died few hours after. The death certificate shows the cause of death to be coronary occlusion and coronary thrombosis.

At the hearing, two doctors presented conflicting testimony regarding the cause of the worker’s death. One doctor, testifying for the employer, said the worker’s heart and other contents of his chest cavity were shaken up by the truck accident but that the condition of the heart, arteries and thrombus was formed more than two weeks before the fatal attack. The doctor who testified for the widow said the force of the blow sustained by the worker when he was thrown from his truck may have produced heart injury.

The court found it impossible to reject as insufficient in law the testimony of the doctor presented by the widow because, according to the court, it was not empty speculation, nor was it a mere general medical lecture. The court pointed out that the hypothetical question posed to the doctor contained all of the salient facts of the case, and his opinion was directed to those facts. The record emphatically establishes that in forming his opinion, he considered both the autopsy and microscopic findings.

There are in this case two conflicting expert opinions each one based upon the same facts. The selection of either is an exercise of fact-finding power which is entirely within the province of the Board and outside the limited jurisdiction of the court. The court said it is not its function to render a decision upon the basis of which expert opinion it deems is more weighty or persuasive. The testimony of each expert was sufficiently direct and specific to create an issue of fact and to warrant a finding either for or against causal relation. That issue has been resolved by the appropriate body the Board in favor of the widow, and the court said the record leaves it no course but to affirm.
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On November 4, 2003 at a construction site on Cantiague Rock Road in Hicksville, New York, an employee of a concrete company was injured. He was working as a concrete laborer on the site. His job on that day was to prepare a concrete frame for a lamp pole base in the parking lot area of the job site. While he was standing next to the hole that the lamp pole base was going to be put in, he was struck from behind. The blow knocked him in to the hole and caused him serious bodily injury. He never saw what struck him. Witnesses on the scene, however, stated that they observed the concrete laborer standing on the side of the hole placing the wooden frame. They stated that the concrete truck had begun to back up and apparently did not see the concrete laborer. The chute of the concrete truck was down in preparation for the pouring of the concrete into the hole. The chute struck the concrete laborer in the area of his upper back which pushed him in to the hole.

The Staten Island concrete laborer filed a law suit against the construction company, the property management company, the property owner, the concrete company’s independent contractors and the concrete company. Within the first year of the law suit, most of these companies were able to prove that they were not involved in the truck accident and had no liability connected with the accident. What was left was a lawsuit against the concrete company, the subcontractors of the concrete company, and the construction company.

The issues that are under evaluation in this suit are under Labor Law § § 240 (1), 200 and common law negligence claims. Also under consideration are Labor Law 241 (6) claims. The victim further alleges violations of the following Industrial Code regulations: 12 NYCRR §§ 23-1.23(a-c); 23-1.5(a-b); 23-1.5(c)(1,3); 23-1.7(b)(1)(I), 23-4.2(a, f-g); 23-9.7(d); 23-9.11(a).

In order for Labor Law § 241 to be applicable to this suit, the victim is required to show specific Industrial Code violations that support his cause of action. He did so and added US Dept. of Labor, Occupational Safety and Health Administration §§ 1926.601(b)(4), 1226.651(a) and 1926.702(b). Because the victim was able to articulate and specify the applicability of Labor Law § 241 9(6) he succeeded in convincing the court that his contentions held more weight than the company’s did.

However, the victim also attempted to add to his claim that there was a large pile of debris on the accident site that he believes could have caused the accident. The company disagreed and the Court Justices stated that there was no reason to believe that if the pile of debris had not been present, that the concrete truck would not have backed up to pour the concrete. Since the concrete truck would have still had to back up to pour the concrete, the accident still would probably have occurred. The presence of the pile or lack thereof would not have altered the facts of the case that set this accident in motions. In order for the company to complete the job required by pouring the concrete into the hole, the frame had to be placed by the victim and the driver of the concrete truck still had to back up and would most likely have still hit the victim. The presence of debris has no bearing on this case. The Westchester company did not suggest any arguments to overturn the complete dismissal of the victim’s Labor Law §§ 240 (1), 200 and common law negligence claims. Because of this, they are not part of the company’s motion and cannot be affected by the decision that the Court will render.
The Court must evaluate each of the Industrial Code violations as they relate to Labor Law § 241. The first one to be considered is 23-1.23 (a-c): Earth Ramps and Runways. Since there were no earth ramps or runways that might have been involved in this accident, this Industrial Code is not relevant to the facts of this case.

Industrial code 23-1.5 (a-b) and 23-1/5 ( c ) (1,3): General Responsibility of Employers deals with health and safety protection which is required. These subsections also deal with the requirement of competency in providing workers with a work place that contains equipment in good condition and safeguards to ensure a safe working environment. Since these subsections all deal with the general responsibilities of employers they cannot be a basis for liability under Labor Law §241 (6). In order for this Law to be in effect, the victim must site specific violations and not general conclusions.

23-1.7 (b)(1)(I): Protection from General Hazards, (b) falling hazards (I ) hazardous openings does not define what is meant specifically by a “hazardous opening.” This Law is also not relevant to the accident in question because it deals with providing barricades or substantial cover over an opening. In order for the job to have been completed, this Law cannot apply since covering the opening would have prevented the pouring of the concrete to complete the job. Also, barriers would not have prevented this accident since both the concrete truck and the concrete laborer had to be present within the confines close to the hole in order to make the lamp post base.

Likewise, 23-4.2(a. f-g): Trench and area type excavations, does not apply since this was not a trench or an excavations. There were no walls that required shoring. This accident did not result of because of a slide and/or cave in.

Labor Law 23-9.7 (d) refers to the backing of trucks at construction sites. However, this law is also not applicable because there was an additional employee who was in place to observe, guide, and signal the driver of the cement truck as it was backing up. This rule also does not take in to consideration an employee standing off to one side while a vehicle is backing and getting struck by something protruding from the vehicle.

Labor law 23-9.11 (a) as it pertains to mixing machines and charging skips is not relevant since this accident did not occur as a result of walking under a charging skip. There were no charging skips involved at all. Because none of the specific Industrial Codes listed by the victim were relevant to this case, the Court finds that the victim’s Labor Law § 241 (6) claim is dismissed.
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