In Shields v. First Ave. Bldrs. LLC, the Appellate Division, First Department affirmed the denial of defendants’ motion for summary judgment on plaintiff’s’ Labor Law § 241(6) claim.
In this construction accident case:
Plaintiff James Shields was cleaning a concrete pump, with the engine running, when a swing tube in the pump swivelled, severing his fingers. Plaintiff was inspecting a ring or groove in the tube for residual grout, and claims that the hydraulics that caused the pipe to move reengaged on their own, despite the fact that he had turned them off.
Plaintiff sought relief under New York Labor Law § 241(6), which 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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
In order to prevail under this section, the plaintiff must show a violation of a sufficiently specific provision of the New York Industrial Code. Here, plaintiff relied on Industrial Code (12 NYCRR) § 23-9.2(a), which provides:
(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest. (Emphasis added.)
The court held that the pump was “power-operated heavy equipment or machinery used in construction” within the meaning of Industrial Code (12 NYCRR) § 23-9.1.
The portion of § 23-9.2(a) stating that “[u]pon discovery, any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement” was inapplicable, in light of evidence that defendants did not have “prior actual notice of the unsafe condition of the hydraulics reengaging after they had been turned off.”
However, dismissal was unwarranted in light of the last sentence of the regulation – i.e., “[a]ny servicing or repairing of such equipment shall be performed only while such equipment is at rest” – which did apply.
Initially, the court noted that this sentence was “sufficiently specific to form a predicate basis for Labor Law § 241(6) liability.”
Given the evidence that the pump would not operate properly if the ring or groove was not completely cleaned of grout after each use, plaintiff’s work on the pump at the time of the accident constitutes “servicing” within the meaning of 12 NYCRR 23-9.2(a). Further, the evidence that the engine was still running and that the hydraulics reengaged on their own shows that the machine was not “at rest.”