A Difference of Opinion: First and Second Departments Differ over Whether a Provision of the New York State Industrial Code can Support a Claim under Labor Law §241(6)
By: Robert P. Valletti, Esq.
New York Labor Law §241(6) is unique: it requires a plaintiff to show a violation of a provision of Part 23 of the New York State Industrial Code. In Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993), the highest court in New York State made a distinction between Industrial Code provisions that were “specific and concrete” and those that merely codified general negligence standards when a plaintiff tries to hold owners and general contractors liable under the “non-delegable” duties imposed under Labor Law §240(1) and §241. Now, as the law stands, a plaintiff must prove that an owner or general contractor violated a specific and concrete provision of the Industrial Code in order to successfully prosecute a claim under Labor Law §241(6).[1]
Courts have had time to consider numerous provisions of the Industrial Code and have determined some are inherently too general to ever support a claim under §241(6), e.g. §23-1.5, while other provisions are always recognized as specific and concrete and hence able to support a claim under §241(6), e.g. §23-1.7(b) or §23-1.8(c).
The problem herein, however, is where two courts have a difference of opinion on whether the Industrial Code provision is specific and concrete “enough” to support the §241(6) claim. The cases of O’Connor v. Spencer, 2 A.D.2d 513 (2d Dep’t 2003) and Kosovrasti v. Epic, LLC, 2012 WL 2428350, 2012 N.Y. Slip Op. 05263 (1st Dep’t) illustrate this problem and the role that venue (the place of trial) plays in the outcome of a case. The Industrial Code provision involved is §23-5.1(b) which reads as follows:
§ 23-5.1 General provisions for all scaffolds.
(b) Scaffold footing or anchorage. The footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction. Unstable supports, such as barrels, boxes, loose brick or loose stone, shall not be used.
Briefly, O’Connor involved a case, originally situated in Queens County Supreme Court, where the lower court denied a defendants motion for summary judgment based on, inter alia, §23-5.1(b), which the Appellate Division, Second Department then found to be “sufficient to sustain a cause of action pursuant to Labor Law §241(6) because they set forth specific, rather than general, safety standards.”
Kosovrasti, on the other hand, was originally in New York County Supreme Court, where the lower court denied a defendant’s motion for summary judgment under Labor Law §241(6). The First Department reversed this decision, however, and held the following: “[t]he sole Industrial Code provision upon which plaintiff may rely (12 NYCRR §23-5.1[b]) to support his Labor Law §241(6) claim is insufficiently specific to constitute a proper predicate since it is a subpart of Industrial Code (12 NYCRR) §23-5.1, ‘General Provisions for All Scaffolds.’”
Where splits among departments exist, it is usually the job of the Court of Appeals to take a case on appeal and determine the issue once and for all (like in this case, hand down a decision which says §23-5.1(b) is OR is not specific enough to support a claim pursuant to §241(6)); however, splitting hairs over which Industrial Code provisions by definition require “specific” mandates and which others are merely codifications of the general negligence standard seems trivial to burden the Court of Appeals with, and these issues generally do not make it up to that level of review.
So what we are left with as plaintiffs’ lawyers representing injured clients with claims under Labor Law §241(6) is the need to do research in the potential venues in which a case may be filed. Until determinative decisions come down from the Court of Appeals, the venue can make all the difference as to whether a case will be dismissed or will remain viable as per the alleged Industrial Code provisions. O’Connor and Kosovrasti give us insight the minds of judges around our departments and ultimately let attorneys know where their client has the best chance of winning their cases.
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[1] This is not a requirement under Labor Law §240(1) which the courts describe as “self-executing.”
