On October 20, 2021, the Appellate Division, Second Department affirmed an order of the Supreme Court, Kings County, dated January 5, 2018, in Hensel v Aviator FSC, Inc.

In an action to recover damages for personal injuries, the plaintiff, Michael Hensel, claimed that the accident occurred as he was loading heavy soccer boards into the back of a box truck. The boards, which had been used to form the walls for indoor soccer fields, were between 6 and 12 feet long and weighed more than 100 pounds each.

While standing on the ground next to a forklift, one of the boards slid off the mechanism and struck Hensel in the head. In alleging the forklift was defective and lacked safety devices that would have secured the boards and prevented the accident, the plaintiff cited common-law negligence and a violation of Labor Laws.

Moreover, the plaintiff opposed the defendant's motion, arguing that the removal of the boards constituted "demolition work" within the meaning of Labor Law § 240(1).

Although the Supreme Court correctly concluded that the disassembly and removal of the boards from the soccer field was a partial dismantling of a structure and constituted "demolition" within the meaning of the Labor Law, the disassembly and removal of the boards was also a significant physical change to the configuration of the structure.

The plaintiff's role in hauling away the boards after they had been removed by the defendant was an act "ancillary" to the demolition and alteration of the field structure, and protected under the Labor Law.

Furthermore, there is absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure"

And "'[F]alling object' liability is not limited to cases in which the falling object is in the process of being hoisted or secured." Rather, liability may be imposed where an object or material that fell, causing injury, was "a load that required securing for the purposes of the undertaking at the time it fell"

The plaintiff was struck in the head by a board, weighing approximately 200 pounds, when it slid sideways off the stack and over the cab of the forklift while the plaintiff stood at ground level.

At the time of the accident, the plaintiff and his coworkers were attempting to slide one of the boards from a stack on the raised forklift into the back of the truck. The stack was raised to a height of approximately 8 or 9 feet at the time of the accident.

A professional engineer, demonstrated that the forklift had been modified and lacked certain safety devices, including "load guides and/or guide rails," which could have been used to "constrain the boards as they were moved from the elevated forks into the truck."

The absence of an adequate safety device constituted a Labor Law hazard, resulting in Michael Hensel’s injury.