How Far Can Labor Law §241(6) Claims Be Stretched?

 
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Plaintiff Donald Nostrom filed suit against several defendants, including premises owners for personal injury and wrongful death.  The allegations against the premises owners were based on alleged violations of New York’s Labor Law §200 and §241(6).  The New York State Supreme Court granted the defendant premises owners’ motions for summary judgment.  Plaintiff appealed those portions of the Order solely pertaining to Labor Law §241(6), which will be the focus of this Article.

The Industrial Code/Labor Law Interplay

Labor Law §241(6) encompasses both the common law standards of care and specific rules and the standards promulgated through the Labor Commissioner’s rule-making authority.  Rothschild v. Faber Homes, 247 A.D.2d 889 (4th Dept 1988).  The Part 23 provisions were specifically implemented and adopted by the Industrial Board of Appeals upon the directive of Labor Law §241(6).  It is well established law in New York that in order to make a Labor Law §241(6) claim, plaintiff must assert a violation of a specific provision of Part 23 of the New York State Industrial Code (“Industrial Code”).  See Campuzano v. Board of Education, 54 A.D.3d 268 (1st Dept 2008); Robinson v. City of New York, 211 A.D.2d 600 (1st Dept. 1995); Geiser v. Harbour Point at Northport Homeowners Assn., 248 A.D.2d 205 (2d Dept. 1998); and Charles v. City of New York, 227 A.D.2d 429 (2d Dept. 1996). 

New York’s statutory scheme for premises liability related to construction site injuries is divided between three sections – Labor Law §§200, 240 and 241(6).  The purpose of Labor Law §241(6) is to enhance and encourage safety at construction sites by requiring owners and contractors to comply with Rule 23 of the Industrial Code.  In order for liability to attach under this section, a defendant must have violated a portion of the administrative code containing “concrete specifications.”  A plaintiff cannot maintain liability based on a “general” provision of the Industrial Code.  In addition, provisions that refer to “adequate” or “reasonable” standards of safety are considered too general and will not support liability under Labor Law §241(6).  See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876 (1993) and McMahon v. Durst, 224 A.D.2d 324 (1st Dept. 1996).  However, unlike other sections of the Labor Law, a violation of the Industrial Code does not result in automatic liability, it does however provide evidence of a defendant’s negligence.  Courts must then determine whether the safety measures used by that defendant were “reasonable and adequate” under the circumstances before liability can be imposed.

The Nostrom Case

Nostrom raises the issue of whether a plaintiff’s claim that a defendant violated a section of Part 12 of the Industrial Code can serve as a basis for establishing liability under Labor Law §241(6).  Plaintiff relied on Osorio v. Kenart Realty, Inc., 35 A.D.3d 561 (2d Dept. 2006) and Piazza v. Frank L. Ciminelli Constr., Inc., 2 A.D.3d 1345 (4th Dept. 2003), alleging that the premises owner defendants were liable under Labor Law §241(6) based on alleged violations of sections 12 NYCRR 12-1.4-1.6 of the Industrial Code, which regulate air contaminants.  Justice Helen Freedman (who has since been elevated to the Appellate Division, First Department) held in the lower court that Part 12 of the Industrial Code  could not be a basis for imposing liability under Labor Law §241(6) because Part 12 contains general regulations.

Plaintiff’s Argument

On appeal, Plaintiff argued that the lower court imposed an improper requirement on plaintiff’s Labor Law §241(6) claim by requiring supervisory control by the owners.  However, plaintiff misread the Court’s ruling.  The Court specifically stated as follows:

Unlike the Second and Fourth Departments, this Department has never found sections 12 of the Industrial Code to be a basis for liability pursuant to Labor Law 241(6) inasmuch as these are general regulations.  Moreover, even if these sections applied, asbestos fibers are not the type of air contaminants envisioned by those regulations because the fibers result from the work that various contractors are doing rather than from an existing condition and, thus, are subject to the control of the contractors and not the premises owners.

It is clear that the Court’s decision to grant summary judgment to the premises owner defendants was based on its finding that the general regulations embodied in Part 12 of the Industrial Code were not a basis for imposing liability under Labor Law §241(6).   While the Court did comment on the lack of control that the premises owner exerted over the contractor at issue, it was not the basis of its ruling.

Plaintiff further argued on appeal that the provisions in Part 12 of the Industrial Code on which they relied are specific enough to form the basis for imposing liability under Labor Law §241(6).  Specifically, plaintiff claimed defendants violated 12 NYCRR 12-1.4 and 12-1.6, which state as follows:

12 NYCRR 12-1.4:

(b)        Responsibility of employers.

(3)        No employer shall suffer or permit an employee to work in a room in which there exist dangerous air contaminants in a work atmosphere.
(4)        No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any place or area subject to the provisions of this Part (rule).

12 NYCRR 12-1.6:

    1. General control methods.  One or more of the following methods shall be used to prevent, remove or control dangerous air contaminants:
    2. Substitution of a material or a method which does not produce dangerous air contaminants.
    3. Local exhaust ventilation conforming to the requirements of Industrial Code Part (Rule No.) 18.
    4. Dilution ventilation.
    5. Application of water or other wetting agent.
    6. Enclosure or isolation.
    7. Other methods approved by the board.

Similar to their argument in the lower court, plaintiff again relied on the Osorio and Piazza decisions in the Second and Fourth Departments, which determined that 12 NYCRR 12-1.4(b)(3) and (4) and 12-1.6(a) were specific enough for the basis of a Labor Law §241(6) claim.  Plaintiff also argued that the legislative intent when enacting Labor Law §241(6) was to provide added protection to workers involved in construction, demolition and excavation activities.  Additionally, plaintiff argued that the purpose of Labor Law §241(6) would be furthered if violations of provisions in other parts of the Industrial Code, in addition to those contained in Part 23, could serve as the basis for liability under Labor Law §241(6).  Plaintiff correctly pointed out that the statutory language of Labor Law §241(6) does not specifically make reference to Part 23 of the Industrial Code and notes that “[t]he commissioner may make rules to carry into effect the provisions of this subdivision … .”   However, the case law interpreting the statutory language is clear that Part 12 regulations are general and not a basis for 241(6) liability.

Defendants’ Opposition

Defendants’ arguments rely on precedent from the First Department that Part 12 of the Industrial Code is not a proper basis for liability under Labor Law §241(6) and argue that Mazzocchi v. International Business Machines, Inc., 294 A.D.2d 151 (1st Dept. 2002) controls in this situation.  In Mazzocchi, plaintiff suffered from mesothelioma and filed suit against the premises owner IBM, alleging violations of Labor Law §§ 200 and 241(6).  Plaintiff claimed the injuries were sustained as a result of asbestos exposure during construction of an IBM facility.  He testified there was visible dust in the air and alleged violations of Part 23 and Part 12 of the Industrial Code – specifically, 12 NYCRR 23-1.7(g) and 12 NYCRR 12–1.4 and 1.6 – as a basis for the Labor Law Labor Law §241(6) claim. 

The lower court in Mazzocchi dismissed the Labor Law §200 claim for lack of evidence of supervisory control.  The court also denied plaintiff permission to amend the complaint to add a Labor Law §241(6) claim, as the Court could not envision any specific violations of Part 23 as required for the Labor Law claim to succeed.  This position was confirmed when, on reargument, the lower court found that 12 NYCRR 23–1.7(g), which incorporated Part 12 regulations regarding control of air contaminants, was not applicable to the Labor Law §241(6) claim.

On appeal of the very issue under appeal in Nostrom, the First Department specifically held in Mazzocchi that plaintiff did not have a claim under Labor Law §241(6) for a violation of 12 NYCRR 23–1.7(g) which regulates air contaminants.    294 A.D.2d at 152.

Defendants also distinguished the two cases that plaintiff relied upon - Piazza and Osorio - which both misinterpret Mazzocchi in holding that a Labor Law §241(6) claim may be based on Industrial Code provisions other than those found in Part 23.  Additionally, Piazza and Osorio can both be distinguished from Nostrom as they involve different fact patterns.

Conclusion

It is well established under New York law that general safety standards are not the proper basis for a Labor Law §241(6) claim.  See Sihly v. New York City Transit Authority, 282 A.D.2d 337 (1st Dept 2001); McMahon v. Durst, 224 A.D.2d 324 (1st Dept. 1996); and Mazzochi v. International Business Machines, Inc., supra.  As noted above, even assuming that the Part 12 provisions relied upon by Plaintiff as the basis for their appeal were set forth in Part 23 of the Industrial Code, plaintiff  still would not have a sufficient basis for their  Labor Law §241(6) claim.  Simply put, the  Part 12 provisions relied upon by plaintiff deal with general criteria regarding air contaminants, not specific standards of work in dealing with asbestos-containing materials as would be required for a Labor Law §241(6) claim.  The decision in Ross v. Curtiss-Palmer Hydro Electric Co. is instructive and should be applied to asbestos actions as well.  The Ross Court held that only “specific, positive commands” may be the basis of imposing a non-delegable duty upon worksite owners under Labor Law §§ 240 and 241(6) (81 N.Y. 2d 494, 504 (1993)).  The reasoning of the Ross Court is clear:  allowing a plaintiff to rely on broad regulatory standards as a basis for their claims against a non-supervising owner or general contractor under Labor Law §241(6) would “seriously distort the scheme of unsafe working conditions that has been developed in our case law.”  To allow otherwise would permit parties to circumvent the supervisory control requirement found in Labor Law § 200 and the common law.

 

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