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How Far Does The Duty To Provide A Safe Worksite Extend? (NY)

April 23, 2021

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<p style="text-align: justify;">In <em><a href="">Potenzo v. City of NY</a>,</em> 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.</p>
<p style="text-align: justify;">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”.</p>
<p style="text-align: justify;">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.”</p>
<p style="text-align: justify;">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).”</p>
<p style="text-align: justify;">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.</p>
<p style="text-align: justify;">Thanks to Corey Morgenstern for his contribution to this post.  Please email<a href=""> Georgia Coats</a> with any questions.</p>


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