In Tornabene v. NYC, Plaintiff was a utility worker working on underground conduits in an open trench.  The flange of an I-beam ran around the perimeter of the trench to hold steel plates in place when the trench was not in use.  Plaintiff stepped onto the flange and started walking toward the trench entrance when he fell in.  Plaintiff alleged that the defendants violated Labor Law §§240, 241(6) and 200.  Plaintiff moved for summary judgment on the Labor Law §240 claim, and defendants cross-moved to dismiss.  In dismissing the Labor Law §240 claim, the court found that since the open trench was required for plaintiff to work in, plaintiff was unable to demonstrate what safety devices should have been made available to protect him from falling into the trench.  The court declined to dismiss the Labor Law §241(6) claim on the basis that there was a question of fact as to whether the defendants violated an applicable Industrial Code provision requiring a barrier or safety railing guarding openings necessitated by work in progress.

Given the court’s holding on the 240 claim, the preservation of the 241(6) claim is somewhat odd.  Nonetheless, a 241(6) claim is more defensible than a 240 claim.  Defendants will take even the small victories.

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