Worker Can Proceed With Labor Law Claims Stemming From Icy Condition On Construction Site
November 17, 2020 Posted By Ardinez A. Domgjoni Insurance Coverage
In Zukowski v. Powell Cove Estates Home Owners Assn., No. 2018-05802, 10/21/2020, Plaintiff Vincent Zukowski, Sr. commenced a Labor Law action to recover damages for common-law negligence and violations of Labor Law §§ 200 and 241(6) in connection with personal injuries allegedly sustained by the Plaintiff. The Plaintiff was required as part of his work to walk from one area of the construction site to another over an area that was covered in snow and ice. On March 1, 2010, Plaintiff slipped and fell twice on ice at premises being built by the Defendants.
The Defendants moved for summary judgment dismissing Plaintiff’s causes of action alleging common-law negligence, a violation of Labor Law § 200, and so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of 12 NYCRR 23-1.7(d).
The Appellate Division, Second Department held that the defendants were not entitled to summary judgment dismissing plaintiff’s claim and determined that Defendants had failed to meet their prima facie burden in seeking dismissal of Plaintiff’s Labor Law 200 and 241(6) claims, reasoning that there was a triable issue of fact as to whether Plaintiff’s path to an excavator on the worksite was a “walkway” within the meaning of 12 NYCRR 23-1.7(d).
Defendants were found liable in common-law negligence and under Labor Law § 200 because Defendants had control over the work site. Furthermore, the Defendants failed to show that they did not cause, create, or have actual or constructive notice of the alleged icy conditions which caused the injured plaintiff to fall.
Regarding 12 NYCRR 23-1.7(d), that section provides: "Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."
The section is sufficiently specific to act as a predicate for Labor Law § 241(6) liability, which provides: “All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . . (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
The Appellate Court noted that the injured Plaintiff testified that the subject path was his only means of going to and from the excavator. The injured Plaintiff further testified that the subject path was flanked by piles of snow that were several feet high. The Court decided that Defendants had failed to eliminate triable issues of fact as to whether the subject area traversed by the Plaintiff constituted a “walkway” within the meaning of 12 NYCRR 23-1.7(d) and, if so, whether there was a violation of the section and whether that violation was a proximate cause of the accident.
This decision provides further support of the Courts’ application of Labor Law 241(6) to work sites where Industrial Code violations are established, even in ice slip and fall situations.
By: Ardinez A. Domgjoni, Esq.