The recent ruling from the New York Court of Appeals has broadened the protective umbrella of Labor Law 241(6), deeming a plastic covering a foreign substance as defined in Industrial Code section 23-1.7(d). Additionally, the court determined that the presence of the plastic covering did not qualify as an integral part of the work, highlighting the defendant's responsibility in creating an "avoidable danger."
This opinion presents a significant challenge for defendants as it raises the risk of liability for owners, contractors, and their representatives in construction site accident cases. The case of Bazdaric v. Almah Partners LLC, 2024 NY Slip Op 00847 (decided on Feb. 20, 2024), centers on a workplace injury that occurred while an employee was completing a painting project. The plaintiffs sought damages for injuries that resulted from a slip and fall on a plastic covering placed over the top of a stopped escalator.
Facts of the Case
Srecko Bazdaric was injured at work when he slipped on a plastic covering on an escalator in the area he was assigned to paint by his supervisor. His injuries left him unable to work. Srecko, along with his wife, Zorka, sued for damages arising out of the injury. They alleged violations of Labor Law §241(6) as well as violations of various sections of the Industrial Code. The defendants were the owners of the premises where the injury occurred, as well as the general contractor on the renovation project, J.T. Magen & Company, Inc., who hired non-party subcontractor Kara Painting, for whom Bazdaric worked.
The Bazdarics moved for summary judgment pursuant to Labor Law section 241(6) as well as various violations of the Industrial Code. They supported their motion with evidence of Bazdaric's plea to his supervisor that he not be required to work atop the plastic covering and that he expressed his concern that it was unsafe. Bazdaric also claims that his supervisor's response was to curse at him and chastise him for his concern. Within minutes of following his superior's order, Srecko stepped on the plastic covering, put his paint can down, slipped, fell, and sustained serious injuries. The plaintiffs also presented evidence that drop cloths were available, but not being used even though several witnesses testified that they were clearly a safer option. In addition, J.T. Magen's superintendent testified that the plastic covering was not the appropriate covering for the escalator steps and that he would have directed the work differently.
The defendants opposed the motion and filed cross-motions to dismiss arguing that the code sections used by plaintiffs were not applicable to this case and that the plastic covering was integral to the work. They also argued that it was Srecko who chose to use a plastic covering instead of availing himself of the cloth drop cloths that were available at the work site.
A divided Appellate Division reversed and granted defendants' cross-motion for summary judgment. The court applied the maxim ejusdem generis and concluded that the plastic covering was not a foreign substance under 12 NYCRR23-1.7(d) because the plastic covering was not "similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water, or grease." It also determined that the plaintiffs' claim was barred because the plastic covering was integral to the work. After the Appellate Division's decision, the case was granted review by the New York Court of Appeals.
Labor Law §241(6)
Labor Law §2419(6) provides: "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." This statute is referred to as "hybrid" because it references the general common law standard of care while also imposing a nondelegable duty to comply with the rules as set by the Commissioner that contain "specific, positive commands." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-504, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). In effect this means that an owner or general contractor "is vicariously liable without regard to their fault and even in the absence of control or supervision of the worksite where a plaintiff establishes a violation of a specific and applicable Industrial Code regulation." Rizzuto v. L.A. Wenger Contr. Co., Inc. 91 N.Y.2d 343, 348-350, 670 N.Y.S.2d 816, 693 N.E.2d 1068(1998).
In the case at hand, the plaintiffs assert that the defendants violated 12 NYCRR 23-1.7(d), a section entitled "General Hazards: slipping hazards." In relevant part, this section states: "Employers shall not suffer or permit any employee to use a floor passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded, or covered to provide safe footing." The court found that this section requires a specific course of conduct and an affirmative duty on the part of the employer above and beyond general compliance with the common law standard of care.
In practice this requires employers "not to permit an employee to use a slippery floor or walkway, and also imposes an affirmative duty on employers to provide safe flooring by requiring that any other foreign substance which may cause slippery footing shall be removed to provide safe footing." Rizutto at 350-51. Under this provision an owner or general contractor is liable where the negligent act of a party to or participant of the construction project violated the provision and caused the employee's injury."
To prove their case and successfully obtain summary judgment the plaintiffs had to show the following:
- Defendants or Kara Painting violated Section 23-1.7(d)'s specific requirements.
- The violation alone, or along with other undisputed factual evidence constitutes negligence.
- The violation caused the plaintiff's injuries.
In the current case, Srecko testified under oath that he was assigned to paint the area where he ultimately fell. This point had corroborating testimony from other parties as well. He said that he voiced his concern about the plastic covering before he began the task assigned to him, but all of his protests were rebuffed. The defendants did admit in their opposition that the "plastic sheathing was a poor choice for the purpose it was used."
The escalator is included in the type of work surface that the statute contemplated. The plaintiffs also showed that the plastic covering was not a part of the escalator and that it was foreign substance that caused a slippery condition. Based on these pieces of evidence, the court concluded that the plaintiffs met the factual predicate to prove that the defendants failed to provide a safe footing from a slipping hazard as is prescribed by the statute. First, the escalator qualifies as a work surface under the statute. Next, the plastic covering was not part of the escalator, and the court therefore categorized it as a foreign substance. The plastic covering caused a slippery condition. Thus, the defendants violated 12NYCRR 23-1(d)'s express prohibition against the use of this work surface without providing safe footing from a slipping hazard.
What Qualifies as a Foreign Substance?
The defendants in this case argued that a plastic covering is not a foreign substance. They based their argument on the fact that a plastic covering is not similar to the other substances listed in the statute. They relied on a maxim— ejusderm generis—which holds that "general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S. Ct. 1302, 149 L.Ed.2d 234 (2001). However, the court found this argument unpersuasive and quoted Becker v. Huss Co., 43 N.Y.2d527,540, 402 N.Y.S.2d 980, 373 N.E.2d 1205 (1978), which stated, "However helpful the maxims when discriminately used, they should not be abused as talismanic."
According to the statute the threshold for whether something is a foreign substance or not depends upon:
- Its relation to the work area. Was it a component of the escalator and was it necessary to the escalator's functionality?
- Were the covering's properties the type included within the affirmative mandate of 12 NYCRR 23-1(d)?
The plastic covering was obviously the opposite to essential to the operation of the escalator. An escalator could not operate at all if a plastic covering was sitting on top of it. A plastic covering is not normally found on top an escalator.
As for the properties of the plastic covering, the court expanded the definition of foreign substance, and this is where the crux of this decision sits. The statute lists "ice, snow, water and grease" as well as including a catchall reference to "any other foreign substance" which in the past has included substances that share a quality common to the enumerated items. The court here explained that the items listed are naturally slippery upon contact and when the substance is present, it would make it difficult to safely work in the area. When these conditions occur, the statute requires that certain mitigating measures be taken by the owner/general contractor to ensure safe footing.
The court determined that a plastic covering over the escalator similarly posed a falling hazard like ice, snow, grease, etc. and made safe work in the area extremely difficult. The supervisor on the job site could have used cloth coverings to minimize falls and protect workers painting in that area. Therefore, in this situation, the court found that the plastic covering qualified as a "foreign substance" pursuant to the law.
Was the Plastic Covering Integral to the Work?
The defendants also argue that the plastic covering was integral to the work being completed on the day Srecko suffered his injury. The court was also unpersuaded by this argument claiming that it should only apply when "the dangerous condition is inherent to the task at hand, and not when a defendant or third party's negligence created a danger that was avoidable." Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 936 N.Y.S.2d 624, 960 N.E.2d 393 (2011). Salazar also acknowledged that some work is inherently dangerous but still permissible, and certain sections of the Industrial Code may not apply if they would render the completion of the work impossible.
However, this does not excuse defendants of liability for failing to mitigate danger when it is possible to do so and still successfully complete the work. In the case at hand the escalator where the painting was taking place required a cover not only to prevent paint from getting into and ruining the escalator machinery, but also to protect workers from a potentially slippery workspace. The use of a cover was integral to this task, but using one that was likely to cause workers to slip was not. A drop cloth could have accomplished the same purpose while at the same time minimizing the risk of a slip and fall. Thus, the defendants failed to establish their defense that the plastic covering was integral to Srecko' s work and safe to use under the circumstances. The order should be reversed as the defendants failed to raise any triable issue of fact as to whether the plastic covering was a foreign substance or caused a slippery footing. They also failed to show that the plastic covering was integral to their work.
The Decision
After careful consideration, the Court of Appeals reversed the decision. It determined that the defendants' failure to remove the plastic covering, which constituted a slipping hazard, violated Industrial Code 12 NYCRR 23-1.7(d), rendering them liable under Labor Law §241(6). The plastic covering was deemed a foreign substance, akin to ice, snow, water, or grease, under the statute. Additionally, the court rejected the defendants' claim that the plastic covering was integral to the work, emphasizing that the danger it created was avoidable. This decision reaffirms the importance of ensuring workplace safety and employing clear communication across all levels of a project. Further, contractors should be careful in the selection of materials used on the surface of floors and other platforms. While the statute does not specify the type of material that should be used, it must not increase the likelihood of injury.
While this decision appears to chip away at the work defense, parties can try to distinguish this ruling by using the facts of this particular case as there was evidence that the plaintiff worker voiced concerns about the safety of performing work on the plastic covering. The defense needs to make sure it preserves any arguments integral to the work defense.
This article originally appeared on Wood Smith Henning & Berman LLP.
Tracy J. Abatemarco is a co-managing partner at Wood Smith Henning & Berman LLP.
James P. Tyrie is a co-managing partner at Wood Smith Henning & Berman LLP.