How Far Does The Duty To Provide A Safe Worksite Extend? (NY)
In Potenzo v. City of NY, the Appellate Division, First Department addressed whether the plaintiff was entitled to partial summary judgment against the defendants City of New York and Tishman Technologies on the Labor Law § 241(6) claim.
Plaintiff brought this cause of action against the defendants for personal injuries sustained when he fell on ice while walking on a path between “the fenced-in area from the security guard booth” and the worksite entrance. The question before the court was to determine if the path was considered a “walkway”.
The court stated, “Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers. To establish a claim under this section, plaintiff must allege that defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct.” (citations omitted). The Appellate Division rejected the lower courts holding that 12 NYCRR 23-1.7(d) did not apply, which states, that no employee shall be allowed “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.”
The court held that “there are no issues of fact to preclude” summary judgment in plaintiff’s favor because: 1) the path plaintiff slipped on was between the security guard booth and the worksite entrance; and 2) it was one of two entrances to the worksite that was used by the workers and as such, the path plaintiff slipped on “clearly qualifies as a walkway within the meaning of 23-1.7(d).”
This decision serves as a reminder that the duty upon owners and contractors to provide a safe worksite can extend to a walkway a worker uses even before entering the site.
Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions.