On November 15, 1956, an employee of a transit /mix commercial concrete truck company drove his work truck to a construction site in New York City. Once there, he filled the concrete lift bucket that was sent down to him and sent it back up. The person who was supervising the transaction worked for another company. The concrete bucket was filled and lifted to the 19th or 22cnd floor of the building two more times without incident. On the third lift, the bucket tilted and some of the wet concrete fell out and injured the cement truck driver. He subsequently filed suit against the company that employed the man who supervised the lift operation and the man himself.
The company that employed the construction supervisor was insured by one company that was different from the company that insured the cement truck. They maintained that the liability for damages falls to the insurance company for the cement truck in that the clause to cover the loading and unloading function would cover this accident. They maintained that the truck was in the process of unloading and was therefore under the cement truck’s insurance at the time of the accident. The insurance company for the cement truck disagreed. They state that the nature of a cement truck makes it different in that as soon as the cement leaves the truck, it is delivered. There is no delay while the cement is placed where the customer intends to place it. That being the case, the cement was delivered and the truck unloaded. The coverage by the cement truck insurance company was therefore over and they are not liable for damages or personal injury resulting from this accident. There was no evidence of anything which would lead to criminal action in this case.
The Court agrees. Under the “complete operation’ doctrine adhered to in the state of New York the filling of the cement bucket delivered the cement and the driver is not normally part of the lift and pour aspect of the cement following delivery. Because the actions do not fall into the normal loading and unloading functions, the insurance company for the cement truck cannot be found liable for any damages or injury resulting from this accident.
It is important that each case be viewed on its own merit and this case is a prime example. Courts must be able to adjust the interpretation of the statutes to reflect the totality of the circumstances of each case.
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