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Not All Regulations Are Created Equal

New York Labor Law section 241(6) requires employers to provide reasonable and adequate protection and safety to construction workers. In order to state a claim that this section was violated, an injured worker must identify a particular Industrial Code regulation that was violated by the defendant. As a recent case in the Supreme Court, New York County points out, however, not all regulations are created equal.

In the case of Lombardi v. 79 Crosby Street LLC, a construction worker was seriously injured when he was struck by a backhoe. The worker was employed as a general laborer on the site, and the injury occurred while he was moving around the site taking coffee break orders from the other workers, a task which was assigned to him by his supervisor.

The worker filed suit against the property owner and others on numerous grounds, including section 241(6). In support of his 241(6) claims, the plaintiff alleged violations of several regulations, including 12 NYCRR 23-9.4, 12 NYCRR §23-9.5, and 12 NYCRR §23-4.2. The court considered each regulation in turn as it ruled on motions for summary judgment on the various claims.

12 NYCRR 23-9.4 – Power Shovels and Backhoes

Two parts of this regulation were implicated. Section (h)(4) states that “Unauthorized persons shall not be permitted in the cab or immediately adjacent to any such equipment in operation.” Was the plaintiff authorized to be in the area near the backhoe when he was injured? If not, the regulation was violated. The court held that he was authorized, since his supervisor had ordered him to go around and take coffee orders from all the workers. Therefore, this regulation was not violated.

The other section involved was section (h)(5), which states that “Carrying or swinging suspended loads over areas where persons are working or passing is prohibited.” The defendant argued that this section was not applicable because plaintiff was hit by the back of the backhoe and not by a suspended load falling on him. Other cases have held that this section doesn’t apply when a worker is struck while the backhoe is not lifting or hoisting at the time. Here, however, the backhoe was lifting dirt at the time, and while he was not struck by the shovel, the movement of the shovel required the cabin and the back to move, which resulted in the worker being struck.

12 NYCRR §23-9.5 Excavating Machines

Subsection (c) requires that “No person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation.” Plaintiff was obviously not the pitman, but was he a “member of the excavating crew?” If he was, this reg may have been violated. The court held that the answer to this question is an issue of fact that should be decided by the jury and not by the court on a summary judgment motion.

12 NYCRR §23-4.2 Trench and Area Type Excavations

The final regulation considered by the court was 23-4.2(k), which states, “Persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.”

The court basically disregarded this regulation as a basis for liability. It referred to the language of the reg as a general statement that care should be taken for the safety of workers, but noted that it does not set forth any actual concrete rules to promote safety. Therefore it cannot be used as a basis for liability under 241(6). In the words of the court, ” To prevail under Labor Law §241 (6), the plaintiff is required to establish a violation of an implementing regulation that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles.”

When preparing a claim under Labor Law 241(6), be sure that the regulation you identify is specific to the type of accident which caused your injury. A great deal of time and effort by the defendant goes into getting your case dismissed before it ever reaches a jury trial, so it is critical that you retain an attorney who understands the facts, the law, and how those two components work together in building a solid and persuasive case. If you have been injured in a construction site accident in New York City, contact Leandros A. Vrionedes, P.C. for assistance.