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Industrial Code Provision Which Prohibits Allowing an Employee to Use an “Elevated Working Surface Which Is In a Slippery Condition” Does Not Apply to Snow Removal/The Injury—a Slip and Fall While Shoveling Snow—Was Caused by “An Integral Part of the Work”

Plaintiff was directed to remove snow from the work site and slipped and fell in the process. The Third Department affirmed the dismissal of plaintiff’s Labor Law 241(6) cause of action because the cited industrial code provision (12 NYCRR 23-1.7 (d)) did not apply to the work plaintiff was assigned. The industrial code prohibited allowing an employee to use an “elevated working surface which is in a slippery condition.” However, where the injury is caused by “an integral part of the work” being performed (here, removal of the slippery condition) that industrial code provision does not apply:

… [P]laintiff cites 12 NYCRR 23-1.7 (d), which prohibits an employer from allowing an employee to use an “elevated working surface which is in a slippery condition.” However, when the injury is caused by “an integral part of the work” being performed, 12 NYCRR 23.1-7 does not apply … . In other words, liability does not attach when the injury is caused by the “‘very condition [a plaintiff] was charged with removing'” … . … Here, plaintiff was injured due to the condition that he was specifically charged with removing … , Barros v Bette & Cring, LLC, 2015 NY Slip Op 04910, 3rd Dept 6-11-15

 

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