A file photo of a dump truck tailgate.
The Appellate Division overturned a lower court ruling and dismissed a claim against a New Scotland homeowner, saying he alone was responsible for slamming his thumb in the tailgate of a dump truck owned by the municipality.
“There was no defect in the tailgate and the risk of injuring one’s hand when slamming a tailgate is obvious as a matter of common sense,” according to the unanimous decision issued on Thursday, Dec. 29.
In June, 2013 the town delivered a dump truck load of wood chips to the home of William Barone as an “informal amenity.” It is not the first time the town delivered chips to Barone’s residence, according to the decision, but it’s the first time he assisted in unloading.
The truck’s driver, George Klopfer, flipped the lever releasing the bottom of the tailgate and then raised the truck bed to dump the wood chips. Some of the chips got stuck, so Barone lifted the tailgate and banged it against the truck’s bed in an effort to shake them loose.
The first time had no effect, so Barone gave it another rip and ended up slamming his thumb between the tailgate and the bed of the truck.
According to Barone, he yelled to Klopfer, asking him if he should slam the tailgate, but admitted he did not receive a response and took it upon himself to try and dislodge the stuck wood chips.
“By his testimony, plaintiff confirmed that he acted of his own accord, slamming the tailgate twice within only a few seconds, providing little if any opportunity for Klopfer to respond – even if he heard plaintiff call out,” according to the court.
The ruling overturns a decision by Albany County Court Judge Denise Hartman, who refused New Scotland’s request to dismiss the lawsuit. The dollar amount Barone is asking for is not mentioned in the decision.