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To See or Not to See: Second Department Maintains Narrow View on Work that “Endangers the Eyes”
May 3, 2024
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Recently, in Chuqui v. Cong. Ahavas Tzookah V’Chesed, Inc., 2024 N.Y. Slip Op. 02166, the Second Department faced an appeal by a third-party defendant in a N.Y. Labor Law case, after the trial court granted summary judgment in favor of plaintiff. Plaintiff, a carpenter employed by the third-party defendant, brought suit against the premises owner, alleging violations of Labor Law §§200 and 241(6). Plaintiff alleged he was injured while using a nail gun to attach wooden plates to the roof of a building, and that while using the nail gun, he was struck in the eye by debris from a metal wire securing nails which were to be loaded into the nail gun. Since allegations of a §241(6) violation are predicated on an alleged violation of some provision in the New York Industrial Code, here, plaintiff alleged a violation of Industrial Code §23-1.8(a), which requires the furnishing of eye protection to employees “engaged in any . . . operation which may endanger the eyes.”
Ultimately, the Second Department reversed the lower court’s decision to grant summary judgment in favor of plaintiff. The court cited to Montenegro v. P12, LLC, 130 A.D.3d 695 (2d Dep’t. 2015) and its premise that the mere fact that a worker was using a pneumatic nail gun did not necessarily make the risk of eye injury sufficiently foreseeable to require eye protection under Industrial Code §23-1.8(a). In this case, the award of summary judgment to plaintiff was unwarranted, since the court found he failed to eliminate all triable issues of fact as to whether he was involved in work that “may endanger the eyes,” and thus required to be provided with eye protection under the Industrial Code. Notably, the court here stated that plaintiff’s failure to demonstrate the applicability precluded any entitlement to summary judgment, even “regardless of the sufficiency of the opposing papers” submitted by defendants.
This case is important to keep in mind in similar Labor Law cases involving eye injuries. Unless the nature of a worker’s job clearly creates a foreseeable risk of possible eye injury, plaintiff will not prevail on summary judgment if a lack of eye protection is the only basis for alleging a §241(6) violation.
