Partial Form Fall Within the Industrial Code Provision to Support Plaintiff’s Labor Law 241(6) Claim.

New York Labor Law 241(6) requires that all areas of construction, demolition and excavation provide reasonable and adequate protection to those employed or frequenting those places. To support a 241(6) cause of action, the plaintiff must point to a specific industrial code provision that was violated. Oftentimes applicability, or lack thereof, of a provision will hinge on the legal interpretation of extremely specific facts.

In Morris v. Pavarini Construction, plaintiff claimed that a piece of a “form” used for shaping concrete fell on his hand. Plaintiff relied upon industrial code provision section 23-2.2 (a) to support his Labor Law 241(6) claim that required “forms” to be “braced or tied together to maintain its position or shape.” Since the form was not yet completed and only a portion fell on his hand, the defendants moved to dismiss on the basis that the provision applied to completed forms and not to portions of a form. After several rounds of appeal and a remand to the trial court for an evidentiary hearing, the Court of Appeals held that the provision applied to portions of a form since the section that fell on the plaintiff was the back wall of the form, which according to the experts ought to have been braced. The Court of Appeals affirmed the denial of the defendants’ motion and granted plaintiff summary judgment on his Labor Law 241(6) claim. This decision is in line with many other recent Court of Appeals decisions involving Labor Law claims. That is, New York Courts, appear extremely liberal in applying the Labor Law and Industrial Code, and unsurprisingly come out in favor of their application so as not to dismiss a plaintiff’s claim. It is with that in mind that some in the New York construction industry have begun petitioning the legislators for Labor Law reform. We will of course stay atop of pending legislation and report any changes if they (ever) do occur.

For any questions about this post, contact Cheryl at cfuchs@wcmlaw.com.