In the case of Morton v. State of New York, Alan Morton was employed by the New York Water Service Corporation, which supplies water to various parts of Long Island’s Nassau County. Morton was part of a crew working to fix a leak in a below-ground water main located under a state highway. While applying a repair clamp, the wall of the trench in which Morton was standing gave way and buried his right leg thereby causing injuries. Morton sued the State of New York under various sections of the State’s Labor Law, including §241(6), alleging a violation of Industrial Code Rule 23-4, which requires banked or sloped sides or shoring and bracing of excavations that are five feet or deeper.

At trial, the trial court found that although the State was not on specific notice of the allegedly dangerous condition, N.Y. Lab. §241(6) imposed a non-delegable duty on the State (as property owner) to ensure compliance with the Industrial Code. The trial court further found that the Industrial Code had been violated and thus found for the plaintiff.

The trial court’s decision was revered on appeal because the Appellate Division reasoned that Department of Transportation regulations required that any work done on a state highway required a permit, and the water company failed to obtain a permit. Therefore, the Appellate Decision reasoned: (a) the State was not on notice of the dangerous condition, (b) Morton was not “a person employed at a work site” within the meaning of §241(6), and (c) since Morton was not employed at the work site, he could not benefit from the protections of the Labor Law.

The Court of Appeals has now affirmed the Appellate Decision, noting that ownership alone is not enough to impose §241(6) liability. The Court wrote that there must also be a nexus between the owner and work performed, such as a lease, easement, or other property interest — which in this case was allegedly lacking — all because of the lack of a permit. Morton’s case was therefore dismissed.

One wonders whether the Court of Appeals would have employed such a strict reading of the Labor Law if a private owner and not the State had been involved. Somehow, we doubt it. It just goes to show, you don’t bite the hand that feeds you — especially if you’re a judge who’s still looking for a raise.

Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove at .

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04827.htm