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INDUSTRIAL CODE PROVISION WHICH REFERRED TO THE REQUIREMENT THAT A ‘DESIGNATED PERSON’ OPERATE A POWER BUGGY IS SPECIFIC ENOUGH TO SUPPORT A LABOR LAW 241 (6) CLAIM, PLAINTIFF WAS STRUCK BY A POWER BUGGY OPERATED BY SOMEONE WHO WAS NOT A ‘DESIGNATED PERSON’ (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissent, determined that an Industrial Code provision requiring that a power buggy be operated by a “designated person” was specific enough to support a Labor Law 241 (6) claim. Plaintiff was injured when he was struck in the back by a power buggy operated by someone who was horsing around and fell off the buggy before it struck plaintiff. The First Department searched the record and awarded summary judgment to the plaintiff:

We agree with the dissent that the regulation’s requirement that a “trained and competent operator . . . shall” operate the power buggy is general, as it lacks a specific requirement or standard of conduct. However, since the term “designated person” has been held to be specific, 12 NYCRR 23-9.9(a) is a proper predicate for a claim under Labor Law § 241(6).

The dissent’s concern that we are exposing a defendant to liability for injury caused by a power buggy operated by an unauthorized person is misplaced … . We note that the Court of Appeals has reiterated that, while the duty imposed by Labor Law § 241(6) may be “onerous[,] . . . it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with constructing or demolishing buildings or doing any excavating in connection therewith'” … , and that “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” … .

Moreover, liability under Labor Law § 241(6) “is dependent on the application of a specific Industrial Code provision and a finding that the violation of the provision was a result of negligence” … .

The fact that the operating engineer was “horse playing” prior to operating the power buggy does not absolve defendant from liability under Labor Law § 241(6) … . ​Toussaint v Port Auth. of N.Y. & N.J., 2019 NY Slip Op 04302, First Dept 5-30-19

 

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