Passageway to Port O Potty Protected Under New York Labor Law (NY)

In Alfano v. LC Main, LLC, plaintiff slipped and fell on ice in front of an outdoor portable toilet while working at a construction site.  Plaintiff alleged violations of New York Labor Law §§ 200, 240 and 241(6), predicated on 12 NYCRR §23-1.7(d).  Since all parties agreed that the area where plaintiff fell was on ground level, the court dismissed the Labor Law § 240 cause of action (“fall from height”).  The court would not dismiss the Labor Law §241(6) cause of action because though the portable toilet was in a common area of construction, to access it, the workers had to walk through a path of fenced in materials demarcated on one side by dumpsters and on the other side by stockpiles of construction materials.  As such, to get to the portable toilets, plaintiff had to walk through a “passageway or walkway” as contemplated by 12 NYCRR §23-1.7(d).

Labor Law cases are extremely fact specific.  If there is any remote possibility that an action can fit into a Labor Law category, courts will typically find a way to do so.  As such, it is important to analyze labor law applicability–or lack thereof–early on, to appropriately defend your case.

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