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THE INDUSTRIAL CODE PROVISION REQUIRING THAT POWER BUGGIES BE OPERATED BY TRAINED, COMPETENT, DESIGNATED PERSONNEL DOES NOT SET FORTH A SPECIFIC STANDARD OF CONDUCT SUCH THAT IT GIVES RISE TO A NON-DELEGABLE DUTY UNDER LABOR LAW 241(6); PLAINTIFF WAS INJURED WHEN AN UNTRAINED OPERATOR LOST CONTROL OF A POWER BUGGY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive three-judge dissent, reversing the Appellate Division, determined the Industrial Code provision which provides “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” was not a concrete specification sufficient to give rise to a non-delegable duty under Labor Law 241(6). Plaintiff was injured when a worker who was not designated or trained to operate a power buggy lost control. A power buggy is a small self-powered vehicle operated by one person and used to move material on construction sites:

… [W]e have repeatedly reaffirmed the rule that to state a claim under section 241 (6), plaintiff must allege that defendant violated an Industrial Code regulation “that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles” … . …

The regulation relied on by plaintiff provides that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” (12 NYCRR 23-9.9 [a]). In assessing whether that regulation is specific enough to support a Labor Law § 241 (6) claim, we examine the text without reference to the underlying facts … . With respect to 12 NYCRR 23-9.9 (a), we agree with the majority and dissent below that the “trained and competent operator” requirement “is general, as it lacks a specific requirement or standard of conduct” … . We disagree, however, with the Appellate Division majority’s conclusion that the additional direction that “trained and competent” individuals must also be “designated” somehow transforms the provision from a general standard of conduct to a “specific, positive command” … . Toussaint v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01955, Ct App 3-22-22

Practice Point: If an Industrial Code provision does not set forth a specific standard of conduct, it does not give rise to a non-delegable duty under Labor Law 241(6). Here the Industrial Code provision which required that power buggies be operated only by “trained,” “competent,” “designated” personnel was not actionable. Plaintiff was struck by a power buggy when an untrained operator lost control.

 

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