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THE INDUSTRIAL CODE PROVISION WHICH GENERALLY PROHIBITS WORK IN AN AREA WHERE A WORKER CAN BE STRUCK BY EXCAVATION EQUIPMENT IS NOT SPECIFIC ENOUGH TO HOLD A CONSTRUCTION SITE OWNER VICARIOUSLY LIABLE PURSUANT TO LABOR LAW 241(6); PLAINTIFF WAS STRUCK BY AN EXCAVATOR WHICH ROTATED INTO HIM (CT APP)

The Court of Appeals, affirming the Appellate Division, over a three-judge dissent, determined the Industrial Code provision at issue was not specific enough to support a Labor Law 241(6) cause of action for plaintiff’s injury. Plaintiff was struck by the back corner of an excavator which rotated into him. Industrial Code 23-4.2 (k) provides “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment” … :

The references to “area” and “endangered” in section 23-4.2 (k) represent the type of “broad, nonspecific regulatory standard[s]” that this Court has held insufficient to support “an action against a non-supervising owner or general contractor” … . Section 23-4.2 (k) does not include a minimum distance that must be maintained between a worker and any excavation equipment, and its protections are not limited to any specific class of worker. The section also does not identify any protective measures or reasonable precautions that a site owner must take in order to comply with the section. Nor does section 23-4.2 (k) provide clear guidance about how owners and contractors should provide reasonable and adequate protection and safety for workers. It merely states a general prohibition with broad applicability, lacking any specific directions. While the safety of workers is a critical concern, the language of section 23-4.2 (k) does not meet the legal standard for specificity required to hold site owners vicariously liable under the Labor Law.  Mann v Mezuyon, LLC, 2026 NY Slip Op 03257, CtApp 5-26-26

Practice Point: Consult this opinion for insight into the level of specificity required before an Industrial Code provision can be the basis for holding a construction site owner vicariously liable for a worker’s injury pursuant to Labor Law 241(6). Here the Industrial Code’s general prohibition against allowing workers in an area where they can be struck by excavation equipment was not specific enough to render the owner vicariously liable.

 

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