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LABOR LAW 241 (6) CAUSE OF ACTION STEMMING FROM EYE INJURY ASSOCIATED WITH USE OF A NAIL GUN PROPERLY SURVIVED SUMMARY JUDGMENT.

Plaintiff was injured when using a nail gun. A nail ricocheted and struck his eye. The Fourth Department determined defendant was not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action because eye protection was required by the Industrial Code, and plaintiff was not entitled to summary judgment because there were questions of fact whether eye protection was available to the plaintiff. The court noted that the risk of eye injury from use of a nail gun is more apparent than any such risk associated with manual hammering:

We reject defendant’s contention that it was entitled to summary judgment pursuant to this Court’s holding in Herman v Lancaster Homes (145 AD2d 926, 926, lv denied 74 NY2d 601). Unlike the circumstances in Herman, plaintiff herein was not manually hammering nails but, rather, was operating a pneumatic nail gun when a nail ricocheted and penetrated his right eye. In our view, “the dangers a nail gun present[s] to the eyes are more apparent tha[n] the dangers of manual hammering” … and the plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes” (12 NYCRR 23-1.8 [a]). Contrary to defendant’s further contention, based upon the record before us, we conclude that plaintiff established as a matter of law that the regulation applies, and that defendant failed to raise a triable issue of fact on that point … .

We agree with defendant, however, that the court erred in granting plaintiff’s motion inasmuch as defendant raised triable issues of fact whether it had violated 12 NYCRR 23-1.8 (a) and whether plaintiff was comparatively negligent … . Specifically, there is a triable issue of fact whether defendant provided eye protection, or made such available, to plaintiff on the day of the accident and, if so, whether plaintiff was comparatively negligent in refusing to use the eye protection. Summary judgment to plaintiff is therefore inappropriate … . We note, in any event, that “[e]ven assuming, arguendo, that plaintiff[] established that defendant violated [12 NYCRR 23-1.8 (a)], any such violation does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’ ” … . Quiros v Five Star Improvements, Inc., 2015 NY Slip Op 09713, 4th Dept 12-31-15

LABOR LAW (241 (6) CAUSE OF ACTION STEMMING FROM USE OF NAIL GUN)/NAIL GUN (LABOR LAW 241 (6) CAUSE OF ACTION BASED UPON EYE INJURY)

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