In Romeo v. Property Owner (USA) LLC, et al., plaintiff, an electrician, was injured when, while walking on a raised computer floor, he stepped on a floor tile that suddenly dislodged, causing his right foot to fall through the opening and strike the concrete sub-floor 18 inches below. Plaintiff sued the property owner and general contractor, alleging violations of Labor Law 200, 240(1), and 241(6). The Supreme Court, New York County granted the defendants’ motion to dismiss.

The Appellate Division, First Department found that plaintiff’s injury did not involve an elevation-related hazard, as defined by 240(1). Plaintiff’s 200 claim (common law negligence) was unsupported by evidence that the owner and general contractor either had notice of the tile condition or that they directly controlled and supervised the electrical work. Plaintiff testified that his work instructions came only from a supervisor who was also employed by the electrical subcontractor.

As to the 241(6) claim, the First Department found that the Industrial Code 23-1.7(b)(1) (hazardous openings) provision relied upon by plaintiff was inapplicable. The opening in question was not of significant depth and size to warrant the protection of the provision. Plaintiff’s reliance upon Industrial Code 23-1.7(e)(2) (work area debris and tripping hazards) was also held to be inapplicable because he was not injured as a result of tripping over debris, dirt, tools or materials. Ultimately, the First Department unanimously affirmed the lower court’s ruling in favor of the defendant.

Thanks to Robin Green for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_02848.htm