Owner/Contractor Vicarious Liability Under Labor Law 241(6) Not Available Based on Industrial Code part 12 Regulations

By Gregory N. Harris  

In Nostrom v. A.W. Chesterton Co., 59 A.D.3d 159 (1st Dep’t 2009), the Appellate Division, First Department upheld a decision of the New York County Supreme Court (Helen E. Freedman, J.), granting summary judgment against a plaintiff who alleged injury from workplace asbestos exposure under NY Labor Law § 241(6), based on alleged violations of portions of part 12 of the New York Industrial Code.
Labor Law § 241(6) requires property owners and general contractors to ensure that areas where construction, demolition and excavation work is performed are reasonably safe for persons on the premises.  § 241(6) further provides that the commissioner may promulgate rules (under the Industrial Code of New York) to carry into effect the provisions of the section. 

In Nostrom, the plaintiff alleged workplace exposure to asbestos, although the exposure was not necessarily related to construction, demolition or excavation.  In an attempt to support his Labor Law § 241(6) claim, plaintiff alleged violations of two sections of part 12 of the Industrial Code, which relates to control of air contaminants.

The Appellate Division held that part 12 of the Industrial Code cannot be used to support a claim under § 241(6) because part 12 gives no indication of having been promulgated pursuant to § 241(6), to provide protections related to construction, demolition and excavation; and because part 12 does not identify specific methods, standards, directives or controls on work processes involving asbestos-containing materials. 

By way of explaining its reasoning, the court distinguished part 12 from other sections of the Industrial Code which can be used to support claims under Labor Law § 241(6).  The court referenced part 23, which specifically relates to protections in construction, demolition and excavation activities, and was clearly promulgated to regulate such activity and “carry into effect” the provisions of Labor Law § 241(6).  The distinction, explained the Court, is that part 12 “applies without regard to whether construction, demolition or excavation work is performed, and gives no indication either that it was promulgated pursuant to Labor Law § 241 (6) or that it contemplates owner/contractor vicarious liability.”

In conclusion, the Court determined that the provisions of part 12 of the Industrial Code do not, except to the extent incorporated by provisions of part 23, support an action under section § 241(6).  Nostrom holds precedential value because it clarifies that though the industrial code may include provisions intended to protect the health of workers, to support claims brought under Labor Law § 241(6), the provisions must be promulgated pursuant to § 241(6), and be intended to provide protections for construction, demolition, and excavation work.