NY Court of Appeals: Function, Not Name, of Injury-Causing Machine Dictates Appropriateness of Industrial Code Section Forming Basis for Labor Law 241(6) claim

St. Louis v. Town of North Elba, 16 N.Y.3d 411 (March 31, 2011):  Court of Appeals upheld denial of summary judgment to defendant property owner.

Plaintiff maintenance worker was injured when a section of pipe fell on him after being released by a “hydraulic-operated clamshell bucket attached to the bucket arm of a front-end loader”, injuring his legs and feet.  He sued defendant property owner under Labor Law 241(6), which requires a plaintiff to “allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles”.  Plaintiff predicated his 241(6) claim on 12 NYCRR 23-9.4 (e), which falls within a subpart concerning “Power Operated Equipment”.

Section 23-9.1 specifies that “[t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations.”  Not mentioned among the ensuing sections (each of which covers specific kinds of power-operated heavy equipment or machinery) were “loaders” or “front-end loaders.”  Seizing on this omission, defendants challenged the use of section 23-9.4 as a predicate for a section 241(6) claim in the context of this case, arguing that it only mentions “power shovels and backhoes” and therefore cannot be extended to include “front-end loaders.”

Supreme Court rejected this argument and denied Ds’ SJ motion.  It relied on a 2006 3d Dept. holding that section 23-9.4 applies to a “payloader” used to elevate construction material and

clearly addresses situations in which construction equipment is used to lift materials and sets forth pertinent safety standards.   The term power shovel is not separately defined and where … construction equipment is used to attempt to accomplish the same task as a power shovel, it would be inconsistent with the purpose of the regulation and cause an objectionable result to find the safety precautions regarding lifting materials inapplicable.  (Citation omitted)

The Appellate Division affirmed, rejecting Ds’ argument that section 23-9.4 cannot apply to a “front-end loader” since “the manner in which the equipment is used rather than its name or label [is] the touchstone in assessing the applicability of a particular Code section.”  The Court of Appeals, in turn, agreed.

Initially, the Court agreed that subpart 23-9 of the Code, which applies to “power-operated heavy equipment or machinery used in construction,” extends to a front-end loader being used to construct a drainage pipeline, since a front-end loader is undeniably “power-operated heavy equipment.”  In addition, the Industrial Code’s definition of “construction work” – codified at 12 NYCRR 23-1.4 [b] [13] – expressly includes “pipe and conduit laying”.

Moreover, the Court agreed that “the safety requirements of this section appropriately extend to the case of a front-end loader that is enlisted to do the material handling that is otherwise performed by power shovels and backhoes”.  Thus:

Although the Code does not enumerate each piece of heavy equipment that can be operated to suspend materials from its bucket or bucket arm, section 23-9.4 (e) was clearly drafted to reduce the threat posed by heavy materials falling from buckets by requiring loads to be fastened with sturdy wire, proportionate to the weight of the load. The same danger that exists for a worker using a power shovel or backhoe with an unsecured load exists for a worker using a front-end loader with an unsecured load.

The Court also noted testimony that “the workers normally secured materials in the bucket by use of metal chain, and the accident report stated that the injury could have been prevented by ‘us[ing] chain on pipe.’”   It was therefore “apparent that material hoisting with a front-end loader is associated in the trade with the same known risks as other power-operated machinery used in this manner.”

The Industrial Code, held the Court,

should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace. … Accordingly, the preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code.

Thus, the Court agreed with the Appellate Division that “a front-end loader used to suspend dangerous construction materials from its bucket arm should demand the same safety precautions as required for other power-operated heavy equipment performing the same function.”

It is now for a jury to determine the remaining issues, such as proximate cause and comparative negligence.

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