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Applying Statutory Exception, NY Appeals Court Reinstates Construction Worker's Labor Law/Injury Claim


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11/29/2009
Jonathan Cooper
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Although slip and fall cases are governed by general negligence principles, such as whether the defendant caused and/or created the defective condition, or had actual or constructive notice of the condition (i.e., they knew or should have known about the defective condition, yet failed to remedy it in a timely fashion), there is an important exception to this rule: when the conditions are governed by statute.

One such example came to the fore in a decision that was handed down by New York's Appellate Division, Second Department (which covers appeals from several courts, including Queens, Brooklyn, Nassau, Suffolk and Westchester Counties). In Fassett v. Wegmans Food Markets, Inc., the plaintiff sustained personal injuries when he slipped and fell on a muddy step while getting out of his  backhoe. Apparently, the step was also slippery because the step's anti-skid treading was missing. In his personal injury lawsuit, the plaintiff claimed that the defendants were liable under Labor Law  §241(6), which provides that defendants may be held responsible for injuries that result from the violation of specific safety statutes (for more on this topic, please see "What A Plaintiff Must Prove To Win A Construction Site Accident Case"). In this particular case, the plaintiff claimed that the defendants had violated 12 NYCRR 23-1.7(d), which statesthat no employee shall be permitted "to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition" and requires the removal of any "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing."

In reversing the trial court's decision that had dismissed plaintiff's claim, the appellate court held that since Labor Law §241(6) was enacted to assure the workers' safety, including their way to and from the work site, the statute was applicable to the entire construction site, including passageways and platforms, not only the specific area where the construction work is actually done.

Category: Construction Site Accidents

Jonathan Cooper
Employment Litigation and School Negligence Lawyer

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