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Plank Used to Access Work Area Not Covered by Industrial Code—Labor Law 241(6) Action Dismissed

The First Department determined a plank used to walk on for access a work area was not “used in the construction of equipment or a temporary structure” and therefore could not be the basis of an action under Labor Law 241(6):

Insofar as the Labor Law § 241(6) claim is based on a violation of Industrial Code (12 NYCRR) § 23-1.7(e)(1), it should be dismissed. The accident occurred in an open working area, notwithstanding evidence that workers traversed the plank to get from the street to the job site … .

Industrial Code (12 NYCRR) § 23-1.11(a) states: “The lumber used in the construction of equipment or temporary structures required by this Part (rule) shall be sound and shall not contain any defects . . . which may impair the strength of such lumber for the purpose for which it is to be used.” While the plank on which DePaul slipped qualifies as dimensional lumber under the regulation, it fails to meet the other specified criteria: it was not used in the construction of equipment or a temporary structure, and no equipment or temporary structure required by Part 23 has been identified by plaintiffs. A plank fails to meet even the liberal definition of “structure” contained in Joblon v Solow …: “any production or piece of work artificially built up or composed of parts joined together in some definite manner” (internal quotation marks omitted and emphasis added). Plaintiffs concede that the lumber was not joined together, and photographs of the location show only loose planks. Simply put, nothing had been constructed from the planks so as to come within the ambit of the regulation. Furthermore, the regulation applies only to a device required to be constructed by another provision of Part 23, as evident from subsections (b) and (c), which discuss, respectively, “[t]he lumber dimensions specified in this Part (rule)” and the nails required “to provide the required strength at all joints.” Thus …plaintiffs have failed to demonstrate that § 23-1.11(a) is applicable, and this claim was properly dismissed … . DePaul v NY Brush LLC, 2014 NY Slip Op 06152, 1st Dept 9-11-14

 

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