take nothing from the fact that the room is totally cleared out and want to match that your honor this demand the thank you good morning may please the court counsel my name is ryan manley i represent the appellant this matter construction worker named michael j your honour's the district court in this case erred in dismissing plaintiff's labor law two forty claim by deciding that he was injured in a kinetic energy related accident instead of a gravity related one but it's not that statute is not about gravity or kinetic energy right it's about elevated workplaces isn't that what it's about it's about elevator work places your honor but it's also about workers that are injured due to the inher box you're not talking about massively heavy can speak of construction material but i don't think there's anything the sense of said has to be a massively heavy construction material doesn't well i think that you know the case law is interpreted as you know the object  have sufficient force and be of a sufficient weight as to where the elevation is de minimus and that because of that if it weighs so much you can cause damage to someone's person and this all takes place in the in a flatbed truck which is about two and a half feet off the ground right director on it and so it isn't that doesn't the case loads and in fact referred to as well established case law the surface of a flatbed truck is not an elevated work surface for purposes only for purposes of following work or cases judge there is a fact a case in our case in which summary judgment for defendant was reversed on the labor law to forty claims where a worker was standing in the back of a flatbed truck and was injured by a beam that came  struck him being raised by a crane well that the beam was at an elevated height right it's cracked and that's that's the nature of that accident was that the injury was sustained because it was an elevated work site but there's nothing about this that involves an elevated work site is there well judge i would argue that the piece of metal itself being five foot tall and having to be the maneuver in which it had to be left in the truck through the absence of an available safety device had to go above the player's head and then come down and in that case you know gravity acted upon the object and actually brought it down from a higher elevation to the lower elevation where the plaintiff was standing that was the only way they could get this device have to lift a tool box over a fence and the tool box drops and hit somebody on the foot that's an elevated work site related injury i don't have to do it over my head because of the fence could be used to lawler could be used to haul waste but i used my hands and jumped up and tossed it over that would be covered by the statute i don't believe so judge because i don't believe that there is a statutorily required safety device the dangers focusing too much on the elevated workplace so it's not just the elevator workplace it's is from an elevation differential that is what really the statute protects isn't it so someone could be standing on something only three inches high but as long as something is hoisted over their head the danger arises from the elevation differential the workplace is defined as not only where the worker stands but where the work's being conducted where the icing is occurring is that the case i agree with a judge i thought of that called a scaffold law my wrong about that it's called the scaffold law right it is referred to as a scout for law judge but the case law has evolved since the passing of the step statute and if we look at the runner case we're not talking about a falling object we're talking about the inherent facts of gravity on used it's being stood straight up we're talking about the government case where plaintiff is workers in the absence of a lawyer heavy lifting device lift up a beam from the ground walk with it and it drops and falls on players federal bench it's taken sixteen years for it to rise its ugly head once again but i've i now feel like i'm back on eagle street trying to figure this thing out as we as we did when i was back there the the i mean the problem here is how is this an elevated related differential i mean it wasn't like that they were i realize that you say they threw it up on of the truck but they were the what if they just slid it up on the truck i mean that  that would have been an elevator related differential right i mean if it had stayed in contact with the truck would you he wouldn't have a claim that somehow he was injured from that woody i would disagree and i think that it's a very dangerous proposition to hold workers to these specific nuances when the purpose of the activity judge is to move heavy object from one elevation to let me at let me ask you this watch this is that is that elevated differential work computers and our other things or the work surfaces below this so i've raised it six inches eight inches is is that elevated related work i believe in raising it i believe it is a way to work raising it because you are in ramp when it fell on them just trying to understand what we should focus on which we should necessarily just focus on where the work was standing we were should focus on the work that was being forms that which is that's correct the purpose of the work that's being performed and what if any device is being replaced by the maneuver that they're using just to move because your client had to show two things one was what we've been talking  about the other is proximate cause it's yes you're right and for whatever reason on this record he appears to have forsaken the law that was at least generally around someone to to get moving is that correct i don't believe there's anything on this record to say that he could wait in terms of anyone that's testified to say well he wasn't really or time crunch or he could have weighed in his opinion i mean based upon the pressure that was being placed on  supervisor the time constraints he was on the fact that when he arrived these pieces of metal are standing up straight in the roadway and there's no loads available there he knew that on this record we don't know when you see no law that's available you just said that it was one hundred yards away but it wasn't available judge it was being used so can you describe for me what you think new york law says about what what bentley available means rez that a question see if equipment was being used or not and just for no good reason decided to use a six foot letter seven april letter you know is told to use the right equipment that you know it was available and he just decided not to use it in this case doesn't readily available i mean he has to be able to use it within the time period by which he's asked to do this task and he knows for a fact that there are only two laws on this massive construction project according to the record one is being used way on the other side of the of the building it's being issue here because and in robinson there was no proof on the record in the court actually mention this that he was under time for straight and that could he could have just waited or he could have moved on to another project there's no evidence of that on the record in this case judge in the work of evidence we have in front of us is our guys being in such a rush he doesn't finish alone in his own truck he's in such a rush and he needs he's been told three different times by a supervisor get this thing off the get the struck off the property thank you   manual lifting maneuver was one of his own making his supervisor initially told him that he needed to get the worker off of the site by three pm so that the worker could get back to get off the clock for the that's  the record believe it a one a one forty in the work or have the tougher driver himself also told mrs mr j and that's in his deposition mr jay's deposition testimony that this was just time for him to get off the clock and mr jane his affidavit in support cross motion for summary judgment says if i had waited for a law that would have would have been able to get him back there by three thirty so you're looking at a thirty minute deferential where mr j made a purposeful decision to not use an available device and the court of appeals in gallagher against new york post actually has talked about what readily available means he says liability under section two forty doesn't attach when the safety devices that plaintiff alleges were absent were readily albeit not in the media immediate vicinity and that's exactly this case there mr j admitted there were two laws on site one of which had just unloaded the tougher truck that he was driving to pick up these h b c ducks in that case mr jay could have waited twenty minutes twenty five minutes still gotten the tougher driver back to the work site within a reasonable time after the deadline no consequences would have occurred to mr jamieson through his supervisor certainly didn't lay any out and the only consequence would have been a little bit over time by the contractor that tradeoff is certainly one that the new york legislature has said needs to be made to promote worker safety the safety as are supposed to be on the worker site so that they are  yesler so they can be available for these kinds of lifting lifting techniques mr j made the decision not to pursue that but even if we accept that an emergency situation existed then that forced him to use this manual lifting maneuver there was no reason mr j needed to get into the back of the truck separately from using the the lifting maneuver in the first place that subsequent decision after the first duct had been loaded to get into the pathway where the duct was going to be loaded and placed him self in harm's way was the sole proximate cause of his injuries and destroys any proximate cause in this case what option was there  to mean if he was going to not use the law they were trying to get this thing on to the truck for and they needed someone to be on track no i don't believe so there's no testimony to that effect in the record that got the first one in without anybody in the truck right who got the first one in without anybody in the truck and his concern mr j testified was that the second one might dent the first as it was a little bit shorter but it was going back to his testimony was it was going back to the shop to be modified anyway so what's the again the trade off is where you can do this work and if there's a dent in a piece of metal it's better than having a substantial injury to a worker to proximate cause to proximate now right to proximate cause issues i think in this case the district court held on the gravity related elevation harm and i think that q that is supported in new york case law as well there's multiple decisions of the appellate division that ambiguity about this certainly there's every one of these cases has particular facts and the law is it has not been applied clearly in every instance but what it would essentially has broken down to from my reading of the law at least is where you have as here workers who are intentionally propelling an object or an object is launched by its own volition and then falls as a result of the kinetic energy that's the the energy that it generates because it was put into motion the courts have held that that is not that is a mere incidental effect of gravity that isn't enough on of the court of appeals case lot of bring in injury under section two forty there may be a different statute that applies there may be ordinary negligence claim that applies but it is not a special harm that to forty was supposed to protect it and well in any event the this kinetic energy theory seems a little bit far afield to me and the analysis to the rail that because of some tension within the rail when the rails piece of the rail is loose then springs up and hits found that they didn't fit and the workers decided to drop them into the back of the truck would that have been an elevated relation differential sure because it at that point you have an object that the first application of force to it is gravity pulls it down falls into the back of the truck you when you have that force that's the direct application of the force of gravity in that instance in this case you haven't you're sitting just tipped over it gravity would be what caused it to fall so i the course of hoisting it it tipped over and landed on somebody his foot that would be gravity they caused it right in that case sure but it's in the incident what the court of appeals case law is looking for is the direct application of gravity its gravity is the primary force that caused this in this instance that's not the case in this instance it was initially propelled by the workers intentionally to defeat gravity to get it back into the back of the truck as example it was the workers who  use kinetic energy to get it off of the scaffold where it was into a truck and it seems to me that that second to work if as the standard the use of kinetic energy is going to there's always going to be energy used to move something from one place to another and once it's moved gravity is going to make it tipped over or fall on the court of appeals has basically said as you look at the application of the force involved primarily and the primary force that started the motion here was not gravity it was the workers picking it up and flipping it into the back of the truck in the applique in the application of judge wesley's hypothetical you have the workers just dropping and then gravity is the primary force that acts those are two cases and that's what the cases that the plaintiff relies on differentiates from from what district court held below the gutierrez case the illinois of a case and the government case that were cited in his reply brief all wore an object was dropped whether it was being lifted by an inadequate  safety device like the rail hooks and gutman or if it was just dropped by workers lifting it up to the nine foot elevated surface in good year each of those times the force that acted on the object primarily was gravity because it was dropped and it fell in this case you have an intentional propulsion of an object to get it into the back of the truck when the point of could have used a different decision had we did but so if they were just carrying this giant duct from here to here required a couple of men to do it and they dropped it two feet and it crushed some bodies foot that's gravity and according to you that's covered well that would be the force of gravity but then you have the additional the additional element which is a physically the falling because of a physically different elevation and that's what's lacking in that example and that you if there is carrying it on the ground and the object was on the ground then the appeals i mean you do have an elevated you have a you have an elevation differential from where the where the duct is to where the ducks going to be so you have no addition differential if you reversed it and they were taking it off the truck and putting it on the ground clearly if if it had fallen off the truck and injured somebody that would be a classic to forty case what it would right itself so then the question is is it different because it's being lifted up on of the truck is the is the risk inherent because of an elevated a differentiation of elevation at the workplace and that that does that make this is this materially different because it's coming from the ground up to the work or as opposed to coming from the from above the worker down to where the worker is in that  say that's different it is different the court of appeals in tow for which was a pre run or case which the court of appeals distinguish in run or said when the item is flying upwards or it's certainly it's i wasn't there so i can't win when the court of appeals held i'm told that when an object was flying horizontally or upwards of a worker that's not a two forty injury and the court of appeals in runner when the court held that it was a two forty injury specifically distinguished runner on that ground saying here you don't have the operation of gravity because the item is is flying horizontally at the worker or sideways or or  easier course given some of the ambiguity and some of the issues about new york law is proximate cause it is it is absolute it's far more clear in this instance where you have a worker who should have made two different decisions and unfortunately did not  they here are very quickly to go back to the proximate cause you know there's there's no evidence on this record that my client wouldn't have suffer consequences for knocking this truck off the site in the time period in which he was being asked to do it there's no evidence on this record to say that you know he could have waited or that he didn't need to get the struck off the fact is that my client's is under an extreme amount of time pressure and the only two laws that are available that lack of proximate cause yes such and so the record is set i mean if whether the district court did or not what we could i guess just look at the record and say no fact finding could conclude that  the the law i think the issue of fact is that's your point you're trying to drive it yeah sure but there's the two sets of issues one is the timing and then the second is he gets up there doesn't he get up there and it's to it's to avoid a dent on another object but the entire thrust of this law is to protect workers rights project so i mean him getting up in the truck i would argue is it's that's contributory he got in the truck to still  lack of available safety device he got up there to basically regulate the descent of this heavy piece of metal that would have been the job of a lower forklift had it been there and had been available he testified that if there was a lot of vailable and he could use it he would have used it for this task and this was a case where he was told to use it or there was one thing nearby and he just like you know what screw it i'm not going to use this thing we're going to put this thing on the truck it's not that case thank you very much jacob gentle reserve decision on john down  memory lane thank you thank you very much i think