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PLAINTIFF SLIPPED AND FELL CARRYING A TANK WHILE WALKING ON THE MUDDY BOTTOM OF AN EXCAVATED HOLE; THE BOTTOM OF THE HOLE WAS NOT A PASSAGEWAY (LABOR LAW 241(6)) AND THERE WAS NO ELEVATION-RELATED RISK (LABOR LAW 240(1); THOSE TWO CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff slipped and fell walking in a muddy, excavated hole. The bottom of the hole was not a passageway within the meaning of Labor Law 241(6) and there was relevant elevation-related risk:

Plaintiff is not entitled to relief under Labor Law § 241(6) for the alleged violation of Industrial Code § 23-1.7(d), since the “excavation pit” where he slipped and fell, “which at that time was no more than a big hole in the ground with an unfinished muddy bottom[,] … was not the type of flooring or passageway contemplated by” the Industrial Code … . Contrary to plaintiff’s contention, his “accident did not occur on a floor, platform, passageway or similar work area or surface within the purview of [section 23-1.7(d)], but rather on muddy ground in an open area exposed to the elements” … . There was no testimony tending to establish that he was walking along a walkway or path that “workers generally took” … . …

Summary judgment also should have been granted to defendants dismissing plaintiff’s Labor Law § 240(1) claim, because there was no elevation-related risk involved with his carrying a tank on his shoulder while he walked along the ground … . Alvarado v SC 142 W. 24 LLC, 2022 NY Slip Op 05584, First Dept 10-6-22

Practice Point: Plaintiff slipped and fell while walking on the muddy bottom of an excavated hole. He was not walking on a passageway, so the Labor Law 241(6) cause of action should have been dismissed. There was no elevation-related risk, so the Labor Law 240(1) cause of action should have been dismissed.

 

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