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The Language of the Industrial Code is Important in Determining Liability Under New York Labor Law §241(6)

July 14, 2023

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New York Labor Law 241(6) imposes a non-delegable duty on property owners and contractors to provide reasonable and adequate protection to those performing work on the property and to comply with specific safety rules. The language of those rules can be critical in determining whether a defendant violated this Labor Law section.

For example, in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Dyszkiewicz-v-City-of-New-York.pdf">Dyszkiewicz v. City of New York</a>,</em> plaintiff was working on a school renovation project and was injured when he slipped on a clear, sticky liquid and fell down a flight of stairs. Plaintiff commenced an action asserting claims for common-law negligence and violations of Labor Law §§ 200 and 241(6). The Labor Law § 241(6) claims were based on alleged violations of certain sections of the New York Industrial Code.

Defendants moved for summary judgment as to all of plaintiff’s claims while plaintiff sought summary judgment on the issue of liability under Labor Law § 241(6) based upon the code violations. The Supreme Court granted that portion of the defendants' motion addressing Labor Law § 241(6) as predicated upon violations of 12 NYCRR 23-1.7(e) and 23-2.1(b) and denied that portion of plaintiff's motion seeking summary judgment as to Labor Law § 241(6) based on violations of 12 NYCRR 23-1.7(d) and 23-3.3(e). After a jury found in favor of the defendants as to the remaining claims, plaintiff appealed.

The Second Department affirmed as to the summary judgment decision and the jury’s verdict. With regard to the alleged violation of 12 NYCRR 23-1.7(e)(1) and (e)(2), the Court observed that those sections protect workers from <u>tripping</u> hazards and did not apply since plaintiff testified that he fell after he <u>slipped</u>. The Court also found that defendants had properly established that 12 NYCRR 23-1.7(e)(2) did not apply because it applies to “working areas” and plaintiff’s testimony established that he fell on a staircase which qualified as a "passageway."

The Court also found that there was insufficient grounds to disturb the jury’s finding as to no liability under certain industrial code sections, including 12 NYCRR 23-3.3(e) which addresses the removal of debris during demolition work. The Court found that the jury could have reasonably found that there was no violation because the plaintiff was moving debris within the school and not removing it from the building.

<em>Dyszkiewicz</em> is a good example of how New York courts will analyze the specific language of the applicable Industrial Code sections in determining whether there is a violation for the purposes of liability under Labor Law § 241(6). That language is important, and defendants should seek a dismissal where a code section does not clearly apply.

Thank you to Rebecca Pasternak for her contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.

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