In Toefer v. Long Is. R.R. (4 NY3d 399, 828 N.E.2d 614, 795 N.Y.S.2d 511 [2005]), the Court of Appeals denied recovery to plaintiffs injured when they fell four to five feet to the ground from the surface of flatbed trucks (Toefer, 4 NY3d at 405).

In Toefer, the plaintiff was injured when a wooden pole being used as a lever to lower beams from a four-foot- high truck bed flew up at him and propelled him to the ground (id.).

The Court held that the plaintiff "was working on a large and stable surface only four feet from the ground. That is not a situation that calls for the use of a device like those listed in section 240(1) to prevent a worker from falling" (Toefer, 4 NY3d at 408).